[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Rules and Regulations]
[Pages 35064-35113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14439]
[[Page 35063]]
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Part II
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 375 and 377
Transportation of Household Goods; Consumer Protection Regulations;
Interim Rule
Federal Register / Vol. 68, No. 112 / Wednesday, June 11, 2003 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 375 and 377
[Docket No. FMCSA-97-2979]
RIN 2126-AA32; formerly RIN 2125-AE30
Transportation of Household Goods; Consumer Protection
Regulations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interim final rule; request for comments.
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SUMMARY: FMCSA is amending its regulations governing the interstate
transportation of personal effects or property used, or to be used, in
a private residence (household goods). Our regulations specify how
motor carriers who transport household goods by motor vehicle in
interstate commerce (movers) must assist their individual customers who
ship household goods. We are updating the regulations to make them
easier to understand and have made several changes designed to assist
consumers. We seek additional public comment on the information
collection requirements for this interim final rule. We will not
enforce the information collection requirements of this interim final
rule until we obtain approval for them from the Office of Management
and Budget (OMB).
DATES: Effective Date: This interim final rule is effective on
September 9, 2003.
Compliance Date: Mandatory compliance with this interim final rule
must begin on March 1, 2004.
Comment Date: You must submit comments concerning the information
collection requirements of this interim final rule on or before August
11, 2003.
If you submit copies of your comments to the Office of Management
and Budget (OMB) concerning the information collection requirements of
this document, your comments to OMB will be most useful if received at
OMB by July 11, 2003. The OMB prefers to receive them by July 11, 2003,
but you can submit them to OMB until August 11, 2003.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-1997-2979 by any of the following methods:
[sbull] Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
[sbull] Fax: 1-202-493-2251.
[sbull] Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
[sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal Holidays.
[sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal information
provided. Please see the Privacy Act heading for further information.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of DOT's dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).
This statement is also available at http://dms.dot.gov.
Comments to OMB: If you submit copies of comments to the OMB
concerning the information collection requirements of this document,
you should mail, hand deliver, or fax a copy of your comments to:
Attention: Desk Officer for the Department of Transportation, Docket
Library, Office of Information and Regulatory Affairs, Office of
Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC
20503, fax: (202) 395-6566.
FOR FURTHER INFORMATION CONTACT: Mr. Nathaniel Jackson, Household Goods
Enforcement Team Leader, (202) 385-2423, Insurance Compliance Division
(MC-ECI), FMCSA, Suite 600, 400 Virginia Avenue, SW., Washington, DC
20024.
SUPPLEMENTARY INFORMATION:
Background
In 1999 Congress authorized FMCSA to regulate household goods
carriers engaged in interstate operations for individual shippers in
the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law
106-159, December 9, 1999, 113 Stat. 1749). The Interstate Commerce
Commission (ICC) administered household goods regulations from 1940 to
1995. In the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88),
Congress terminated the ICC and transferred the household goods program
to the Federal Highway Administration (FHWA) effective January 1, 1996.
The FHWA administered the household goods program through its Office of
Motor Carrier and Highway Safety. The regulations governing interstate
household goods transportation are in 49 CFR part 375.
The FHWA published a notice of proposed rulemaking (NPRM) on May
15, 1998 (63 FR 27126) requesting comments on its proposal to update
the household goods regulations. These regulations set forth regulatory
requirements for moving companies who provide transportation for
individual shippers. An individual shipper is generally a retired
person or someone changing jobs. The individual shipper uses for-hire
truck transportation services infrequently and may have little or no
information about the regulations movers must follow and how they
operate. This information may be essential in enabling a shipper to
make informed decisions in selecting a mover and ensuring a
satisfactory move.
On March 5, 2001, the General Accounting Office (GAO) released its
report to Congressional Committees, ``Consumer Protection: Federal
Actions Are Needed to Improve Oversight of the Household Goods Moving
Industry,'' No. GAO-01-318. Section 209 of the MCSIA directed that GAO
study the effectiveness of DOT's consumer protection activities for the
interstate household goods moving industry and identify alternative
approaches for providing consumer protection in the industry. A copy of
the report is in the docket. The GAO findings on the FMCSA's household
goods program included the following: (1) The Department of
Transportation has done little to oversee the Household Goods moving
industry; (2) Consumer education activities have been minimal; (3) The
Department does not know the extent to which it has examined carriers'
compliance with Household Goods rules; and (4) The Department
[[Page 35065]]
has not determined whether its level of enforcement is appropriate.
These regulations represent FMCSA's effort to provide a reasonable
level of protection to consumers of household goods moves. Comments to
the NPRM and FMCSA enforcement actions have established the need to
address weaknesses in the system for movement of household goods. Given
the volume and scope of household goods movements each year, FMCSA
acknowledges that it cannot intervene in individual cases to assure
consumers their desired result. With these regulations, FMCSA attempts
to establish parameters of fair dealing for household goods movers and
a reasonable level of protection for consumers. The agency seeks to
equip consumers with information adequate to make informed decisions
about moving their household goods.
Interim Final Rule: Request for Comments on Information Collection
Requirements
When the FHWA published the NPRM on May 15, 1998 (63 FR 27126)
requesting comments on its proposal to update the household goods
regulations, it failed to send the package separately to OMB for its
review of the information collection requirements. Because of this
error, it is necessary to publish this document as an Interim Final
Rule, rather than a Final Rule, to allow OMB time to complete its
review and to allow the public additional time to submit comments on
the information collection requirements. As described above under
``DATES: Comment Date:'' OMB allows 60 days for public comment, but the
rule becomes effective September 9, 2003, allowing time for FMCSA and
OMB to resolve any concerns about the information collection
requirements in this Interim Final Rule. For more information on
FMCSA's analysis of the paperwork impact, see ``Paperwork Reduction
Act'' later in this preamble.
Docket Comments
In response to the NPRM, the agency received 53 letters from 48
different individuals or entities. Twenty-four (24) letters did not
comment on any specific aspect of the NPRM. Each of these 24 letters
told of alleged abuses the authors had suffered in past moves of their
own household goods. Each supported in general terms the goals of the
NPRM to protect individual shippers.
The docket received substantive responses from the following
entities:
Action Scale & Weighing Systems, Inc. (Action)
Air Weigh
The American Moving and Storage Association, Inc. (AMSA)
As a combined comment, the Attorneys General of Alabama, Arkansas,
Arizona, Florida, Hawaii, Iowa, Idaho, Illinois, Indiana, Kansas,
Massachusetts, Maryland, Missouri, New Jersey, Nevada, New York, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Washington,
Wisconsin, and West Virginia (25AG)
The Attorney General of Connecticut (AGCT)
Cat Scale Company (Cat)
The Commonwealth of Pennsylvania's Department of Agriculture
Deskin Scale Company, Inc. (Deskin)
The National Association of Consumer Agency Administrators (NACAA)
The Oklahoma Corporation Commission (OCC)
Sisson Scale and Equipment Co., Inc. (Sisson)
Starving Students
The State of California's Department of Agriculture
The State of Colorado's Department of Agriculture
The State of Idaho's Department of Agriculture
The State of Michigan's Department of Agriculture
The State of New Hampshire's Department of Agriculture
The State of Oregon's Department of Agriculture
The State of New York's Department of Transportation (NYDOT)
The University of Minnesota's Student Legal Services
Weighing Consultants, Inc. (WCI)
FMCSA will discuss each of the substantive comments in relation to the
specific sections they addressed.
Section 375.101 Who Must Follow These Regulations?
AMSA objected to the use of the term ``motor common carrier engaged
in the transportation of household goods'' in this section and Appendix
A. AMSA notes the ICCTA deleted reference to ``common'' carriers. It
refers to section 13102(12) of the ICCTA. AMSA believes the part 375
regulations should reflect the terms used in the ICCTA and we should
strike the word ``common'' wherever it appears in connection with
``motor carrier(s).''
Response to Comments
Although the ICCTA no longer includes a definition of ``common
carrier,'' FMCSA is still registering household goods carriers subject
to these regulations as ``common'' carriers, under the transitional
rule of 49 U.S.C. 13902(d). However, FMCSA, in implementing the Uniform
Carrier Registration System required by 49 U.S.C. 13908 expects to
eventually eliminate the distinction between common and contract
carriers in registering motor carriers. Consequently, we are adopting
AMSA's suggestion by applying the regulations to for-hire motor
carriers engaged in the interstate transportation of household goods
for individual shippers.
Section 375.103 What Are the Definitions of Terms Used in this Part?
AMSA comments that the term ``advertisement'' is defined as ``any
communication to the public in connection with an offer or sale of any
interstate transportation service.'' It believes we should define this
term more accurately in the context of part 375 by adding the words
``household goods'' before the word ``transportation.'' The revised
definition would read as follows:
``Advertisement'' means any communication to the public in
connection with an offer or sale of any interstate household goods
transportation service.
The AGCT comments that the proposed definition of ``transportation
of household goods'' should include handling of a shipper's goods by
the carrier or his agent, while loading at the point of pickup,
unloading at the point of delivery, and all handling in between,
whether in storage or in transit.
AMSA believes that FMCSA should change the regulatory definition
``Transportation of household goods'' by eliminating subparagraph (2),
reading ``Another party arranges and pays for the transportation of
household goods.'' AMSA believes this recommended change is also
consistent with the clear intention of the original 49 CFR part 1056
(1995) regulations that restricted their application to transportation
paid for by the householder, specifically referencing 49 CFR
1056.1(b)(1) (1995). AMSA comments that we should change the definition
to read as follows:
``Transportation of household goods'' means the householder (an
individual shipper) arranges and pays for the transportation of
household goods. This may include transportation from a factory or
store when the individual shipper purchases the household goods with
the intent to use the goods in his or her dwelling.
AMSA comments on the AGCT's comments, stating that it believes that
such a change is not necessary. The definition of ``Transportation''
contained in 49 U.S.C. 13102(19) includes each of the services
enumerated in the AGCT's recommendation and, for purposes of
[[Page 35066]]
these regulations, the statutory definition is controlling.
AMSA also comments about this section's definition of an
``individual shipper or householder,'' contending that it does not
correspond to the definition of an individual shipper contained in 49
U.S.C. 13102(10)(A). It provides, in addition to owning the goods being
transported, the individual shipper is also the party paying for the
move. This ``arranged and paid for by the householder'' provision
serves to distinguish moves on behalf of individual shippers from those
paid for by national accounts ``corporations'' for their employees as
identified in 49 U.S.C. 13102(10)(B). AMSA states that national account
shippers differ from individual shippers in that orders for service are
not required (purchase orders or other similar documents are frequently
issued in lieu of orders for service). National accounts also often
have relocation policies that conflict with or supersede certain
requirements of the existing regulations. Since this is an important
distinction, AMSA believes, it suggests we change the wording of this
provision to accurately define an individual shipper as follows:
``Individual shipper or householder'' means any person who is
the consignor or consignee of a household goods shipment identified
as such in the bill of lading contract, who also owns the goods
being transported and pays the moving charges.
AMSA believes the agency should modify the definition of
``reasonable dispatch'' to make it clear that shippers are liable for
charges related to additional services they request or require, as
follows:
For example, if you deliberately withhold any shipment from
delivery after an individual shipper offers to pay the binding
estimate or 110 percent of a non-binding estimate, plus the costs
for additional services that were performed en route or at
destination which were necessary to complete the transportation, you
have not transported the goods with reasonable dispatch.
Response to Comments
We agree with AMSA's suggestion to eliminate proposed subparagraph
(2) from the definition of ``transportation of household goods.'' In
the interim final rule we have combined the definitions for ``household
goods'' and ``transportation of household goods.'' This is consistent
with 49 U.S.C. 13102(10). We believe the AGCT recommendation regarding
``transportation of household goods'' could have an unintended
consequence for many individual shippers. If the agency were to adopt
its recommendation, a mover may be able to convince an individual
shipper that a mover or its agents, and only a mover or its agents,
could handle the shipper's goods for loading at the point of pickup,
unloading at the point of delivery, and all handling in between whether
in storage or in transit. Depending on how the individual shipper
contracts for moving services, other companies or the shipper herself
may perform the other services.
Movers and their agents perform many services, including what AMSA
states on page 36 of its comments as ``the precise requirements
necessary to properly remove the contents of a residence, secure them
in an over-the-road vehicle and effect delivery at the new residence''
that ``can result in additional services which, in turn, require the
assessment of additional charges.''
The individual shipper may determine he/she wants to perform the
additional services or have another party do them. Adopting the AGCT's
comments may have the unintended consequence of having a disreputable
mover claim to be the only entity that can handle the shipper's goods.
FMCSA does not question that reputable movers and their reputable
agents perform these extra services with value to the shipper, but the
shipper may be on a tight budget, and the shipper may choose not to
have the mover perform those ``precise requirements necessary to
properly'' effect delivery.
We do not agree with AMSA's suggested change to the definition of
``reasonable dispatch'' because the change would imply that carriers
could demand payment for additional services before delivery. Under
this interim final rule, the most that a carrier could demand before
delivery is 100 percent of a binding estimate or 110 percent of a non-
binding estimate.
The agency has adopted AMSA's comments regarding the definition of
``advertisement'' and ``individual shipper.'' We also removed the
exclusion of advertisements on radio and television from the definition
and clarified that Yellow Pages advertising is included in the
definition. FMCSA also has chosen to keep the definitions for
``Commercial shipper'' and ``Government bill of lading shipper'' the
same as in the current rules. We are moving the definition of
``Certified scale'' from proposed Sec. 375.507 to this section.
Finally, we are adding new definitions to explain the terms ``Tariff''
and ``Surface Transportation Board.''
Section 375.201 What Is My Normal Liability for Loss and Damage When I
Accept Goods From an Individual Shipper?
The AGCT recommended the title of the section should be changed
from ``loss and damage'' to ``loss or damage'' to clarify the
differences between contractually agreed upon increases in the
carrier's liability and the availability of insurance coverage. The
AGCT believes we should require the carrier to disclose the limits of
its liability in a clear, concise manner and preclude a carrier from
characterizing contractually agreed upon increases in liability as
``insurance.'' AGCT also believes the rules should provide that a
carrier may have additional liability if it sells excess liability
insurance. It is unclear to AGCT whether the proposed rule used the
term ``excess liability insurance'' as it is normally used in the
insurance industry or as a term of art meaning insurance in excess of
the carrier's liability as limited by its released rates. If FMCSA
intended to define insurance in excess of the carrier's liability as
limited by its released rates, AGCT recommends we should simply refer
to it as ``liability insurance.''
AMSA believes that the AGCT suggestion that we clarify language in
Sec. 375.201 to explain the difference between carrier liability under
released rates orders (RRO) and the availability of excess liability
insurance is unnecessary. Section 375.201 is directed to movers and
AMSA believes we intended to restate the mover's understanding of the
parameters of liability. AMSA believes movers do not require additional
explanations along these lines to understand their liability.
AMSA comments that paragraph (a) of this section, which states the
mover is legally liable for loss or damage occurring during the
transportation of household goods, should be modified to eliminate
confusion as to the full extent of a mover's liability. Proposed
paragraph (a) reads as follows:
(a) In general, you are legally liable for loss or damage if it
happens during performance of any one of the following three services
identified on your lawful bill of lading:
(1) Transportation of household goods.
(2) Storage-in-transit of household goods, including incidental
pickup or delivery service.
(3) Servicing of an appliance or other article, if you or your
agent performs the servicing.
AMSA proposes revising paragraph (a) to read as follows:
(a) In general, you are legally liable for loss or damage if it
happens during
[[Page 35067]]
performance of any transportation of household goods and all related
services identified on your lawful bill of lading.
AMSA comments that paragraph (c) of this section provides that the
mover may incur additional liability if it sells excess liability
insurance. AMSA states when a mover arranges for the purchase of
insurance and a shipment is transported under separate liability
insurance, the mover's liability is specifically limited to 60 cents
per pound per article. AMSA believes the regulations provide for no
additional coverage by the mover unless the mover fails to issue a copy
of the insurance policy or other appropriate evidence of insurance as
explained in proposed Sec. 375.303(h). Given these circumstances, AMSA
recommends we delete this provision.
Response to Comments
We do not agree with AGCT's suggestion to change ``loss and
damage'' in the title of the section to ``loss or damage'' because we
believe the words are interchangeable and essentially mean the same
thing. We agree with AMSA's comments on paragraph (a). By using the
phrase ``and all related services'' we can eliminate subparagraphs
(a)(1)-(a)(3). This clarifies that the mover has liability for any
services offered in the bill of lading.
We are also adopting the AGCT's comments to change ``excess
liability insurance'' to ``liability insurance.'' We agree with AGCT
concerning the need for additional explanations regarding carrier
liability in this section and have included appropriate language in
Sec. 375.201(d). We do not agree with AMSA's comments concerning
paragraph (c). Paragraph (c) builds upon proposed Sec. 375.303(h) by
noting the full liability the carrier may be subject to if it fails to
issue a copy of the insurance policy or other appropriate evidence of
insurance as explained in proposed Sec. 375.303(h). Thus, we are
keeping the provision, but have added clarifying language concerning
Sec. 375.303(h) (Sec. 375.303(g) in this interim final rule).
In addition, FMCSA is replacing the reference in paragraph (b) to
the 1993 released rates order with a more generic reference. This order
was recently amended, effective May 12, 2002. Because Surface
Transportation Board released rates orders may change over time, the
regulations should not be date-specific in referencing such orders.
Section 375.203 What Actions of an Individual Shipper May Limit or
Reduce My Normal Liability?
AMSA comments that paragraph (a) provides that the inclusion of
perishable household goods in a shipment without notice to the mover
relieves the mover of liability. It suggests that to comport with
generally applicable tariff provisions that allow the mover to limit
liability when perishables are disclosed and accepted for
transportation, this provision should be expanded to include reference
to hazardous and dangerous articles, as follows:
If an individual shipper includes perishable, dangerous or
hazardous articles in the shipment without your knowledge, you need
not assume liability for those articles or for the loss or damage
caused by their inclusion in the shipment. If the shipper requests
that you accept such articles for transportation, you may elect to
limit your liability for any loss or damage by appropriately
published tariff provisions.
AMSA believes paragraph (b), by including reference to units of
weight and measure in metric terms with the Imperial equivalent
expressed parenthetically, will prove unduly confusing to both
individual shippers and the moving industry. It recommends that until
such time as the metric system is more commonly recognized in the
United States, the terms should be reversed, with the metric equivalent
shown in parenthesis.
Response to Comments
We have adopted AMSA's comments concerning dangerous and hazardous
articles. This change also comports with 49 CFR 175.25 concerning
passengers transporting dangerous or hazardous materials in airline
baggage and 18 U.S.C. 1716 and U.S. Postal publication number 52, July
1999 (available at http://www.usps.com/cpim/ftp/pubs/pub52.pdf and
http://www.usps.com/cpim/ftp/pubs/pub52.htm) concerning hazardous,
restricted, and perishable articles being proper for mailing. We have
also placed a warning similar to Sec. 175.25(a)(1) in Appendix A to
part 375--Your Rights and Responsibilities When You Move (YRRWYM),
noting that the mover may limit its liability for the transportation of
such materials in household goods.
The National Institute of Standards and Technology (NIST) has
advised FMCSA that we should primarily use SI (metric) measurements.
The Omnibus Trade and Competitiveness Act of 1988 cites metric units
before inch-pound units where both units appear together and places
separate sections containing requirements in metric units before
corresponding sections containing requirements in inch-pound units. In
some cases, however, trade practice is currently restricted to the use
of inch-pound units; therefore, some NIST requirements continue to
specify only inch-pound units until the National Conference of Weights
and Measures achieves a broad consensus on the permitted metric units.
In accord with NIST policy, FMCSA will use trade practice until the
National Conference on Weights and Measures achieves a broad consensus
on the permitted metric units.
Section 375.205 May I Have Agents?
The AGCT comments that we should require disclosure of any agency
relationships to a shipper. AMSA does not object to such a requirement
since it is normal industry practice to explain agency relationships.
In fact, subpart B of YRRWYM contains an explicit explanation that
alerts shippers to the existence of these relationships.
Response to Comments
We note that requiring disclosure of any agency relationships to a
shipper would subject us to additional information collection
requirements of 5 CFR part 120 for that disclosure. We note the largest
motor carriers have agents and transport the most household goods
shipments. Since we explain in the YRRWYM that motor carriers may have
agents and AMSA believes it is normal industry practice to make such
disclosures, we believe it is not necessary to require a separate
notice for shippers. We believe shippers have plenty of notice that
agency relationships may exist and may ask about them. If a mover
transports a shipment that used the services of an agent, and the agent
acted upon, or omitted, items in its performance of such
transportation, the shipper has the right to file a complaint with us
against the motor carrier or the agent.
Section 375.209 How Must I Handle Complaints and Inquiries?
NACAA supports the requirement that movers maintain a procedure for
handling complaints. The AGCT requested that FMCSA impose an explicit
affirmative requirement upon a mover to respond promptly and
appropriately to complaints by a shipper.
AMSA disagrees with the AGCT because:
* * * as the [AGCT] concedes, the proposed language contemplates
that movers maintain internal systems that are responsive to
shippers' complaints. The requirement that telephone numbers be
furnished to shippers is sufficient to ensure ready access to the
mover's system and, obviously, what may constitute an
``appropriate'' response is dependent upon the facts of each
situation. This is not a matter that warrants a more explicit
attempt to regulate.
[[Page 35068]]
Response to Comments
We believe it is sufficient to ensure ready access to the carrier's
system by requiring a telephone number. As AMSA points out, what may
constitute an ``appropriate'' response, and even a prompt response, is
dependent upon the facts of each situation. We do not believe explicit
regulation is warranted. We believe shippers are knowledgeable enough,
and should be responsible enough, to inquire with better business
bureaus and us if they are dissatisfied with a mover's complaint
handling. Better business bureaus also monitor the number of and types
of complaints businesses receive.
Section 375.211 Must I Have an Arbitration Program?
A majority of household goods complaints we receive involve loss
and damage claims. The 24 individual shippers who submitted docket
comments generally complain about the handling of their loss and damage
claims rather than commenting directly about any particular aspect of
the proposed rule or solutions to correct such problems. The ICCTA
imposes an arbitration requirement for the handling of most loss and
damage claims against interstate movers. See 49 U.S.C. 14708. We
proposed to amend the former ``information for shippers'' section of
the regulations, formerly 49 CFR 375.2 (proposed Sec. 375.213), to
replace the required summary of the carrier's dispute settlement
program with a summary of its arbitration procedures and results.
As we discussed in the NPRM, Congress established the arbitration
system in the ICCTA to afford consumers a forum for resolving loss and
damage claims arising from transportation of household goods and to
replace the informal dispute resolution functions previously handed by
the ICC. The ICC conducted the informal dispute resolution functions
under its general authority to regulate movers, but did not have a
specific statutory requirement to perform that function. The Congress
wanted ``private, commercial disputes to be resolved the way all other
commercial disputes are resolved--by the parties.'' See H.R. Rep. No.
104-311, at 87-88 (1995). See also pages 117 and 121. The MCSIA
expanded the availability of arbitration by requiring that carriers
provide arbitration, upon shipper request, for claims of up to $5,000
(as opposed to the $1,000 limit in the ICCTA). The GAO report also
studied the roles of consumers in preventing and resolving disputes.
NACAA supports having movers maintain an arbitration program for
loss and damage claims.
The Consumers Union recommends we require each mover give its
arbitration information at the time an estimate is made rather than
before executing an order for service.
The OCC believes arbitration should be expanded to include a format
for alternative dispute resolution. Arbitration alone limits available
dispute resolution means, and inasmuch as alternative dispute
resolution enjoys widespread recognition, it would seem illogical to
omit it.
The AGCT requests FMCSA require the mover to provide a fair and
prompt process that is paid for by the mover. By requiring the mover to
bear the cost of the arbitration, the mover has an incentive to resolve
claims and arbitration proceedings in a timely manner.
The 25AG suggest modifying proposed Sec. 375.211(a)(2) to include
a paragraph (iv) to require conspicuous disclosure of the right to the
information contained in Sec. 375.211(a)(3). They believe that Sec.
375.211(a)(2) and (b) are inadequate as disclosure requirements because
they provide no guidance as to either the timing or manner of
disclosure.
The 25AG also believe consumers need to know of their right to
forego arbitration and pursue court action under 49 U.S.C. 14704. They
claim that many movers refuse to participate in their own program or do
so in a dilatory fashion. They recommend that we require arbitration be
provided at a reasonable cost and at a reasonable location, without
undue delay before a neutral independent third party. The arbitrator
should be empowered to grant whatever relief would be available in
court under law or in equity.
In AMSA's view, a requirement that all household goods carriers
file annual arbitration reports would likely not be useful to
consumers, itself, and the moving industry. AMSA disagrees that such
reports would assist us in meeting our statutory responsibility to
report to Congress regarding arbitration, and in providing individual
consumers with relevant claims information.
Details regarding arbitration and the relative success or failure
of the single program that represents virtually all movers are readily
available from AMSA, it asserts. To assist us in meeting our statutory
reporting requirements, AMSA stated that it sent reports to FHWA
containing the results of its arbitration program, both in advance of
the June 1997 due date of the FHWA report to Congress and after June
1997.
AMSA believes that the information contained in the periodic AMSA
reports is sufficient. It believes we can use its reports to monitor
the moving industry under 49 U.S.C. 14708(g). From a consumer
standpoint, AMSA is not convinced that the requested claims handling
information would provide consumers with meaningful claims data.
Furthermore, it also is not convinced that individual consumers are
interested in claims data when it comes to their selection of a mover.
Consumers are more interested, AMSA believes, in whether the mover is
properly licensed, has insurance, has a good professional reputation,
and complies with the regulations. AMSA reported the industry has a
claims frequency ratio of roughly 21 percent, i.e., only one in every
five shipments results in a claim. AMSA interprets this to mean that
the proposed report would have no relevance to almost 80 percent of the
consumer shippers whose shipments do not sustain loss or damage. It
asserts that the incidence of arbitration is even less frequent. AMSA's
experience is that less than one percent of all claims result in
arbitration; thus more than 99 percent of the shipments transported
will not become involved in the arbitration process.
From a technical standpoint, AMSA believes the proposed report only
requires the reporting of the total number of shipments transported and
the number of claims less than and over the statutory maximum for
mandatory arbitration. It believes the meaning of our ``total
shipments'' (all household goods shipments; only COD shipments,
excluding civilian government, military and national accounts) is
unclear, as is the ``number of claims'' (claims filed; claims paid, and
so on). AMSA presumes that it would be left to consumers to try to
calculate a claims frequency ratio from the data provided and, if they
get that far, to compare their particular mover's frequency with that
of other movers or with industry average data. Complicating this
situation is the fact that some carriers encourage the use of
arbitration, while others do not. Therefore, individual carrier data
may be entirely misleading, e.g., a high number of arbitration cases
could be construed to mean the carrier has an unacceptable claims
experience when precisely the opposite may be true since the number of
arbitrations may bear no relation to the number of claims.
In addition, AMSA asserts that the language of the proposal makes
it clear that FMCSA will be required to process and maintain over 2,000
carrier annual
[[Page 35069]]
reports in order to respond to consumer requests for information. Also,
FMCSA would be required to allocate resources to answer consumer
questions regarding the reports and compile aggregate statistics to be
in a position to answer consumer questions regarding the importance and
meaning of a given carrier's data. Consumers will be unable to make
informed decisions regarding report data unless they know how specific
carrier data compares to industry average data. All of this assumes
that we have the necessary staff to collect, process, and disseminate
more than 2,000 such reports each year to even a fraction of the
600,000 individual shippers who may choose to request a copy. Since
experience has shown AMSA that considerably less than 1,000 shippers
will request arbitration in any year, any benefits that may be derived
from this system will be overshadowed by the time, effort, and money
expended preparing, filing, copying, and disseminating such reports.
AMSA also comments that paragraph (a)(3) would require that, upon
an individual shipper's request for arbitration, the mover must furnish
forms and information necessary to initiate an action to resolve a
dispute. It believes the requirement that specific forms be furnished
will be unduly burdensome.
Section 14703 of the Code, it argues, requires that movers furnish
shippers with written information explaining the availability of their
dispute settlement programs. One of the benefits of these programs is
that the process (at least the AMSA version of the process) is quite
informal and easy to use. No forms are required. Instead, shippers need
only submit a written request for arbitration by letter or facsimile.
AMSA believes requiring the use of specific forms to initiate the
procedure will only serve to unduly complicate a program that has been
running effectively without such forms for more than two years.
Accordingly, it recommends that the words ``forms and'' should be
deleted from paragraph (a)(3).
The AGCT recommends that the cost of arbitration be borne entirely
by movers to provide an incentive to resolve claims promptly.
AMSA believes that Congress has addressed this point. Shippers may
not be assessed more than one-half the cost of arbitration and
arbitrators' decisions may include cost assessments. See 49 U.S.C.
14708(b)(5). It argues that Congress no doubt viewed the payment by
shippers of a portion of the expense of arbitration as a means to
discourage the presentation of frivolous claims. Of course, movers may
elect to bear a greater portion or all of these costs if they so elect.
The OCC recommends that arbitration be expanded to include
``Alternative Dispute Resolution,'' arguing that arbitration alone is
limiting. AMSA believes that Congress has also addressed this point.
The applicable statute, 49 U.S.C. 14708, refers to ``arbitration'' as a
means of settling disputes between movers and shippers. That aside,
``Alternative Dispute Resolution'' is a generic term that refers to a
wide array of practices which are intended to resolve disagreements at
lower cost than would be incurred in litigation and includes
arbitration.
The 25AG recommend that the proposed arbitration section should be
strengthened in several respects by the addition of requirements for
prominent disclosure of consumers' rights at the outset of the
transportation transaction and expeditious processing of requests for
arbitration by impartial third parties.
AMSA is not opposed to an explicit recitation of mover
responsibilities related to disclosure and other aspects of statutorily
mandated arbitration programs. However, it argues that the predicate
for the 25AG's argument is that if the regulations are not explicit,
``* * * many movers will not participate in arbitration in good faith
otherwise.'' Such a proposition is obviously inconsistent, it states.
If a mover is intent on violating the requirements of law, AMSA
argues, explicit regulatory language will not act as a deterrent. This
is a matter of enforcement. To the extent the 25AG have, as they
assert, encountered movers that do not participate in an arbitration
program, AMSA argues that those movers should be reported to FMCSA for
enforcement action.
Moreover, AMSA notes that the proposed regulation contains no less
than 14 explicit directives that will govern all aspects of mover
arbitration programs. One of those requirements states that: ``You must
produce and distribute a concise, easy-to-read, accurate summary of
your arbitration program, including the items in this section.'' Sec.
375.211(b). In addition, paragraph (a)(2) requires that ``Before the
household goods are tendered for transport, your arbitration program
must provide notice to the individual shipper of the availability of
neutral arbitration. * * *'' Thus AMSA believes these and other
provisions of the proposed regulations clearly address the 25AG's
concerns.
Response to Comments
We agree with AMSA. We believe the annual arbitration report
(proposed Sec. Sec. 375.901-375.907) will not be a benefit to
shippers, the industry, or FMCSA. We also believe we should not retain
the ICC's annual performance report elements for a combined annual
report. Consumers will have to make informed decisions regarding
movers' products and services without past performance reports that
have been, and most likely would continue to be, inaccurate. FMCSA does
not have the necessary staff to collect, process, verify, and
disseminate such reports each year to all individual shippers, consumer
advocacy organizations, and attorneys general who may choose to request
a copy.
AMSA was correct that FMCSA would be required to process and
maintain over 4,000 carrier annual reports in order to respond to
consumer requests for information. (The NPRM used the figure 2,000 for
the number of motor carriers, but we are using 4,000 in this Interim
Final Rule, based on the FMCSA Motor Carrier Management Information
System and Insurance Division's best estimate in March 2002 of the
number of active household goods carriers authorized to operate in
interstate commerce.) Also, the agency would have to allocate resources
to answer consumer questions regarding the reports and compile
aggregate statistics if we were to be in a position to answer consumer
questions regarding the importance and meaning of a given carrier's
data. Consumers would be unable to make informed decisions regarding
report data unless they know how specific carrier data compares to
industry average data. All of this would assume that FMCSA would have
the necessary staff to collect, process, and disseminate more than
4,000 such reports each year to even a fraction of the 600,000
individual shippers who may choose to request a copy. Any benefits that
may be derived from a reporting system would be outweighed by the time,
effort, and money expended preparing, filing, copying, and
disseminating such reports. FMCSA cannot justify the information
collection costs in accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3520). Therefore, FMCSA is withdrawing the proposal to
require the filing of an annual arbitration report.
We congratulate AMSA for not needing forms to initiate its
arbitration programs. As AMSA points out, however, it does not
represent all interstate movers. FMCSA does not want to preclude a
mover who finds it
[[Page 35070]]
necessary to have a form from requiring that form and we would require
the mover provide it upon the individual shipper's request.
We note, in response to comments by NACAA and OCC, that consumers
have numerous remedies available to them before entering the
arbitration process or if carriers fail to establish and maintain
arbitration processes. As the 25AG note, consumers, NACAA, and the OCC
should know of the consumer's right to decline from participating in
arbitration, and, instead, pursue court action under 49 U.S.C. 14704.
We believe it is not necessary to inform movers of this right in part
375 since AMSA has shown through its comments that its members have a
good understanding of the statute. FMCSA has added this information to
the YRRWYM appendix, though, to be provided to shippers for their
benefit.
NACAA should not be surprised about our position regarding our
limited role in dispute resolution. The Congress, as the NPRM noted,
provided a clear understandable directive against allocating scarce
resources to resolve private disputes and indicated that our primary
role was to oversee the regulations. The GAO report also noted this
Congressional directive.
We are not adopting the NACAA recommendation that the regulations
require that other Federal, State, and local agencies retain
jurisdiction over movers' acts and practices. This can be accomplished
only by statute, not through these regulations.
Section 375.213 What Information Must I Provide to a Prospective
Individual Shipper?
NACAA supports requiring movers to provide all prospective
customers with the YRRWYM booklet. NACAA further believes movers should
be required to insert their prior two years arbitration reports in
YRRWYM to enable consumers to examine the claims history of a
prospective mover. It believes the expense to movers will be
negligible. It also recommends that all movers post annual arbitration
reports on the Internet with references to their web site in YRRWYM and
that FMCSA audit these arbitration reports.
The AGCT suggests requiring movers to provide a prospective shipper
with a copy of a blank uniform bill of lading used by the mover before
loading the shipment, to give the shipper an opportunity to review and
ask meaningful questions about the terms listed on the form. It also
would require movers to provide copies of their tariffs to properly
inform the consumer of possible charges that may be levied by the
mover.
The Consumers Union recommends that the information required by
this section be provided at the time an estimate is given rather than
before an order for service is executed.
AMSA believes the AGCT's recommendation that movers be required to
provide a blank bill of lading and their tariffs to prospective
shippers is unrealistic and burdensome. AMSA alleges that industry data
indicates that roughly three shipment surveys are performed for each
shipment booked. AMSA did not provide the data for the docket. AMSA
believes requiring the distribution of bills of lading and tariffs
containing several hundred pages of technical matter to prospective
shippers would burden shippers and movers alike. In any event, Congress
has addressed this issue by requiring in 49 U.S.C. 13702(c)(1) that
movers provide notice of the availability of their tariffs for shippers
who would elect to examine tariff provisions related to their move.
Consumers Union strongly urges FMCSA to redraft YRRWYM into even
plainer language. As one example it states that subpart K should be at
the front of the pamphlet.
AMSA disagrees with the Consumers Union. The proposed YRRWYM
publication is a substantial revision of the former ICC publication.
AMSA believes it significantly clarifies many points that are important
to consumers in language that represents a major improvement over the
former ICC language.
Response to Comments
FMCSA will adopt the specific recommendation provided by the
Consumers Union by moving Subpart K to the front of the pamphlet.
In the interim final rule, FMCSA has added a paragraph (a)(3)
requiring movers to provide notice of the availability of the
applicable sections of their tariffs for shippers' examination or have
copies sent to them upon request. FMCSA believes this addition provides
shippers with adequate information to assist themselves in asking
informed questions.
To require significant additional consumer information be provided
by carriers, as recommended by some commenters (arbitration reports,
blank bills of lading, complete copies of tariff) at the time an
estimate is given, would add significant burdens on carriers beyond
anything proposed in the NPRM. Since shippers frequently obtain more
than one estimate, the additional burden on carriers could be
multiplied several times. Also, because most tariffs are voluminous
documents, FMCSA believes that it is beneficial to both shippers and
carriers to limit the additional requirements in paragraph (a)(3) to
the applicable sections of the tariff.
Section 375.215 How Must I Collect Charges?
The OCC recommends the option of pre-payment be made available at
the shipper's election, especially for weight-based shipments. The
mover would insure an accurate weight before shipping to protect its
weight-based revenues. The shipper, in turn, would have more confidence
in the weight and pre-payment of freight charges would eliminate
unexpected destination or other charges.
AMSA questions whether OCC's recommendation would serve the
interests of shippers. Section 375.401(a)(1) of the proposed
regulations provides a mechanism for guaranteed charges. Shippers have
the option of electing to tender their goods under a binding estimate
and, in fact, many exercise that option. AMSA states that its data
indicates that 47.2 percent of all COD consumer shipments were
transported under binding estimate tariff provisions in 1996. (AMSA did
not provide this data for the docket.) AMSA believes that authorizing
payment of transportation charges in advance of the actual delivery of
goods could provide unscrupulous movers with the opportunity to deceive
shippers. As a case in point, it notes the experience of Ms. Josephine
Meany, whose complaint is included in the NACAA comments.
Unfortunately, Ms. Meany paid thousands of dollars to an unlicensed
mover for what amounted to essentially no service. Her son's goods were
not transported to the intended destination and she was forced to hire
and pay a second mover to transport the goods. AMSA urges that we
reject the OCC recommendation.
Response to Comments
FMCSA agrees with AMSA. The shipper may not know at the time he or
she contracts for transportation whether circumstances related to the
move may cause additional freight charges beyond those agreed upon at
origin. The mover should not be held accountable for poor planning on
the shipper's part. FMCSA, however, has added regulatory text to the
interim final rule that specifies that all rates and charges for the
transportation and services rendered must be in accordance with the
mover's applicable tariff in effect, including the method of payment.
[[Page 35071]]
Section 375.217 How Must I Collect Charges Upon Delivery?
NACAA requests a modification stating that the mover ``may specify
two forms of payment acceptable, only one being cash or a cash
equivalent.''
The AGCT suggested FMCSA establish nondiscriminatory rules
governing cash-on-delivery (COD) service and collection of COD funds
rather than allowing movers to develop their own procedures in the
tariff. It suggested modifying paragraph (b) to require movers to
relinquish possession of a shipment upon payment by the consumer of an
amount substantially less than the binding or non-binding estimate.
This provides the consumer with some leverage over the mover in the
event of a dispute. The mover would have to pursue a claim against the
consumer rather than requiring full payment by the consumer and forcing
the consumer to pursue the mover. Such a burden shift provides greater
protection for the consumer.
AMSA comments that the NACAA proposal, if adopted, would limit the
options available to movers and their customers to effect the payment
of transportation charges. The generally applicable options for payment
are cash, certified check, traveler's check, or bank check (drawn by a
bank and signed by a bank officer). See HGB Tariff 400-M, Item 29. In
addition, the existing credit regulations in Sec. 377.215, the
household goods regulations in Sec. 375.19, and proposed Sec.
375.221, authorize the credit card option for payment and provide
specific requirements related to the use of credit. Taken as a whole,
AMSA believes these provisions adequately address the concerns
expressed by NACAA.
AMSA believes the AGCT proposal for adopting nondiscriminatory
rules for the collection of transportation charges in this proceeding
is addressed in the preceding paragraph. Additionally, AMSA asserts
that the AGCT has apparently neglected to consider the discussion at
page 27128 of the NPRM that outlines the FHWA response to the moving
industry's request for amendment of the existing credit regulations.
AMSA states ``obviously, household goods movers are not at liberty to
fashion payment and/or extension of credit tariff provisions that would
violate the existing or proposed FHWA regulations.''
The 25AG argue that the form of payment issue is directly related
to consumer overcharge complaints. The 25AG therefore propose that
Sec. 375.221 require that, if a mover agrees to accept a credit card
at the beginning of the shipment transaction, the credit card should be
accepted at delivery. They also propose a related amendment to Sec.
375.503(b)(9) dealing with bill of lading contents, which would require
disclosure of the form of payment required upon delivery if it is
different from that agreed to at the outset of the transaction.
In a similar vein, the AGCT is opposed to permitting movers to
treat the reversal of a credit card transaction as an involuntary
extension of credit. It argues that consumers should be authorized to
treat a mover's failure to pay a claim for delay or loss/damage as an
``involuntary extension of the shipper's credit to the mover,'' thus
subjecting the mover to the same financial penalties as the consumer
bears under the credit regulations at Sec. 375.807.
AMSA asserts that each of these proposals is fraught with the
potential for endless controversies between movers and shippers. More
importantly, it believes, they reflect a misunderstanding of
Congressional intent. Section 13707 provides that a motor carrier ``* *
* shall give up possession at the destination of the property
transported by it only when payment for the transportation or service
is made.'' Since the extension of credit by movers is permissive, it
would be foolhardy to adopt regulations that would attempt to address
these issues since they cannot adequately anticipate the many
circumstances that occur when drivers and consumers settle accounts at
the time of delivery. AMSA argues that accepting a credit card at
origin, for example, provides the consumer with sufficient time to seek
alternative means of payment should the charge amount be declined by
the card issuer. If a driver delivers on weekends or after hours and
the mover's credit/collection department is closed, the driver cannot
call in the charges and the mover will not be in a position to make
certain that the card issuer will accept the charge. Dealing with a
credit card at delivery may also cause unnecessary delays. If the
charge is declined, the consumer must seek alternative means of payment
that could unnecessarily delay delivery. In the meantime, the mover
must wait, which could result in additional charges, vehicle detention,
or storage-in-transit. These proposals could have the unfortunate
result of forcing movers to limit the payment alternatives that are
presently offered to shippers.
AMSA strongly opposes the AGCT proposal that movers should be
required to relinquish possession of a shipment upon payment of an
amount ``substantially less than the binding or non-binding estimate''
in order to provide consumers with ``leverage'' in the event a dispute
arises. AMSA believes it obviously ignores the requirements of 49
U.S.C. 13707 and the important requirement contained in 49 U.S.C.
13702(a)(2) that:
The mover may not charge or receive a different compensation for
the transportation or service than the rate specified in the tariff,
whether by returning a part of that rate to a person, giving a
person a privilege, allowing the use of a facility that affects the
value of that transportation or service, or another device.
AMSA believes the 25AG have approached this and a number of other
issues as if the regulations to be promulgated should be treated in a
vacuum with no consideration given to underlying statutory directives
or restraints. They also ignore the fact that movers have a lien on the
goods they transport and may refuse to deliver until their charges are
paid or guaranteed. Illinois Steel Co. v. Baltimore & Ohio Railroad
Co., 320 U.S. 508 (1944).
Response to Comments
FMCSA appreciates the comments received regarding this section and
has incorporated the recommendation that we require the mover to
specify the form of payment when the mover prepares the estimate. The
mover and its agents must honor the form of payment at delivery, except
when a shipper agrees to a change. The mover must include the same
information on the order for service and bill of lading. It is
important to state in the rule that the carrier must accept the method
of payment originally agreed in order to avoid unnecessarily burdening
the shipper, who may not be prepared to make an alternative form of
payment. For example, in a case where a cashier's check is the agreed
payment and the carrier demands cash on a Saturday evening when the
bank is closed, a serious problem would be created for the shipper,
most likely resulting in the driver leaving without unloading the
shipment.
FMCSA has also added another requirement to the interim final rule.
If the mover or its agent agrees to accept a charge or credit card
payment as the method to pay for receipt of goods at delivery, then the
mover must arrange for delivery during the time the mover's credit/
collection department is open to seek approval of payment by card
issuer, unless the vehicle is equipped to process credit card payments.
[[Page 35072]]
Section 375.221 May I Use a Charge or Credit Card Plan for Payments?
The OCC believes the term ``cashier's check'' should not supplant
the term ``money order.'' A loss of an open money order that does not
denote a payee can result in a stop payment of the same. No stop
payment is available for the loss of cash. A shipper may hesitate to
carry a large sum of cash and may want to go to a convenience store and
convert the cash into consecutive money orders. AMSA agrees that both
terms should be used.
The 25AG believe the regulations should mandate that the mover's
payment policy be the same at all stages of the transaction. If charge
or credit cards are permitted at the order for service, the cards
should be allowed at the time of delivery. They suggest that carriers
should inform consumers of their payment policies.
The AGCT suggests the regulations should not allow carriers to
treat reversal of credit card transactions as an involuntary extension
of credit. This is not consumer protection, it believes. If carriers
suffer financial loss due to actions of the consumer, carriers should
be required to rely on the same avenues of dispute resolution that are
available to the shipper. It further recommends that FMCSA should allow
a consumer to treat a carrier's failure to pay a claim for untimely
shipments or damage or loss as an involuntary extension of the
shipper's credit to the carrier, subjecting the carrier to the same
financial penalties as the consumer listed in Sec. 375.807.
Response to Comments
FMCSA has added money orders as a form of acceptable payment in the
interim final rule. If a mover accepts money orders as an acceptable
form of payment, the mover must include the provision in its tariff.
FMCSA has also added language to Sec. 375.221(a) to make it clear
that a carrier is bound by the payment provisions in its tariff from
the time it gives an estimate until completion of any transaction that
results from that estimate, unless otherwise agreed with a shipper
under Sec. 375.217(a).
FMCSA has retained the rule language that allows a carrier to treat
a reversal of a credit card transaction as an involuntary extension of
credit because the use of a credit card is considered an alternative to
payment in cash, certified check, money order, or cashiers check, which
are payment methods that cannot be reversed.
However, FMCSA has not added a provision allowing a consumer to
treat an unpaid claim against a carrier as an involuntary extension of
credit. Adding such a provision would be beyond the scope of the NPRM.
Resolution of a claim that may be in dispute is traditionally resolved
in a State court.
Section 375.301 What Service Options May I Provide?
The AGCT recommends that the regulations should require carriers to
have liability insurance covering casualty losses resulting from the
actions of the carrier.
AMSA comments that the rationale underlying the AGCT recommendation
is not clear. AMSA states that carriers are liable for cargo loss and
damage under 49 U.S.C. 14706 and must provide evidence of insurance
pursuant to 49 U.S.C. 13906(a)(3). As a general proposition, casualty
insurance coverage contemplates personal injury losses, a subject that
is not related to this proceeding. In any event, carriers are also
required by statute to maintain liability insurance in amounts
prescribed by the Secretary covering bodily injury, etc. See 49 U.S.C.
13906(a)(1).
Response to Comments
FMCSA agrees with AMSA. The AGCT's recommendation appears to
contemplate requiring personal injury loss coverage in these
regulations. This is not within the scope of this rulemaking and is
already required by statute and regulation.
Section 375.303 If I Sell Liability Insurance Coverage, What Must I Do?
The 25AG recommend requiring clear and conspicuous disclosure to
consumers of all limitations on liability coverage and any inventory
requirements needed for valuation of their shipments, as well as
requiring disclosure, at the time of delivery, of whether any agents
were used during the move and whether the consumer's goods were stored
during the shipment. They further recommend that upon the consumer's
request, carriers should provide numerous pieces of information. Such
information would include the agents or subcontractors used during the
move, liability coverage for that move, identification of all storage
facilities used, and liability coverage attendant to that storage. They
also suggest development of regulations that will sharply limit the use
of disreputable tactics by some carriers to avoid legitimate liability
coverage obligations.
The AGCT suggested the regulations require carriers to procure
insurance on behalf of the shipper. If a carrier sells or offers to
sell liability insurance to the shipper, the carrier must comply with
any applicable licensing requirements of a State insurance regulatory
body. If the carrier sells or procures insurance on behalf of the
consumer, the consumer must be the named insured on the policy and the
carrier must provide the consumer with a copy of the policy and a
certificate of insurance indicating the period of coverage.
AMSA comments that the language proposed in Sec. 375.303(a)(1) and
(2) is unclear in establishing the conditions under which carriers may
sell or procure insurance coverage for cargo loss or damage. As
written, paragraph (a) provides that insurance may be procured only
under the two conditions set out in paragraphs (a)(1) and (2). However,
those paragraphs are not connected with the conjunctive ``and'' or the
disjunctive ``or.'' Moreover, AMSA believes the language in paragraph
(a)(2) is confusing. It describes a situation where the shipper fails
to declare a valuation of $1.25 per pound and pays or agrees to pay the
carrier for assuming liability equal to ``the declared value.'' This
condition is at odds with itself.
AMSA points out that under the outstanding Surface Transportation
Board released rates order (RRO), the failure to declare a lump sum
value or valuation of $1.25 per pound will result in the shipment being
deemed to have been released to a declared lump sum value of $1.25 per
pound times the weight of the shipment. See 9 I.C.C. 2d 523.
In any event, AMSA believes paragraph (a)(2) can be eliminated as
unnecessary. Historically, carriers were authorized to sell or procure
excess insurance only when the shipment was released to a value not
exceeding 60 cents per pound. Although current Sec. 375.11(a) contains
the additional condition that ``the shipper does not declare a
valuation of $1.25 or more,'' it is clear that the latter condition is
superfluous. Although stated as two conditions, they are actually the
same. If a shipper releases a shipment at 60 cents per pound, he could
not declare a valuation at $1.25 per pound or more. Conversely, if he
declares a valuation at $1.25 or more, he could not release the
shipment at 60 cents per pound. This mutual exclusivity is made clear
in the RRO giving rise to this language. See RRO No. MC-505, Released
Rates of Motor Common Carriers of Household Goods, June 7, 1966, and
Released Rates Decision No. MC-999, 9 ICC. 2d 523 (1993). AMSA
therefore recommends that paragraph (a)(2) be deleted.
[[Page 35073]]
AMSA further argues that paragraphs (b) and (c) are duplicative to
some extent. Current Sec. 375.11(a) is limited to insurance for loss
and damage just as appears in proposed paragraph (c). It therefore
recommends that paragraph (b) be deleted, paragraph (c) be redesignated
as (b), and the remaining paragraphs be redesignated accordingly.
With respect to the 25AG recommendation that more explicit language
should be employed to preclude carrier avoidance of payment of loss or
damage claims, AMSA believes that proposed Sec. 375.303 is not
intended to deal with this issue. Carriers, it asserts, are required to
process claims for loss or damage in accordance with the regulations
contained in 49 CFR part 370. If, as the 25AG argue, they encounter
situations in which they believe carriers have violated part 370, a
complaint can be made to FMCSA.
AMSA believes that the AGCT recommendation that carriers be
required to procure insurance on behalf of shippers and, if
appropriate, comply with any applicable State licensing requirements,
confuses the carrier's role in procuring insurance. Carriers do not
sell insurance, but may procure insurance on behalf of a shipper from
an insurance entity that is authorized to issue a policy under
applicable State law.
Response to Comments
In response to the 25AG, we believe that the carrier, its
employees, and agents are essentially one and the same, in that the
carrier is responsible for the acts of both the employees and agents.
Therefore, the authorized carrier named in the bill of lading would be
primarily responsible for any activity involving the move, including
the selling of insurance and providing the shipper with a policy from
the insurance carrier. If the authorized carrier used an owner-operator
under lease agreement, the carrier would be fully liable for the move.
The Surface Transportation Board's revised RRO states that unless
the shipper expressly releases the shipment to a value not exceeding 60
cents per pound per article, the carrier's maximum liability for loss
and damage shall be either the lump sum value declared by the shipper
or an amount equal to $4.00 times the actual weight of the shipment,
whichever is greater. Additionally, the shipper may purchase additional
liability insurance coverage from the carrier. The revised RRO provides
that the $4.00 rate may be increased annually by the carrier based on
the Department of Commerce's Cost of Living Adjustment.
As we noted in our response to Sec. 375.201, we have added
regulatory text to Sec. 375.201 concerning the full liability to which
the carrier may be subject if it fails to issue a copy of the insurance
policy or other appropriate evidence of insurance. Also, we have
adopted AMSA's recommendation to delete proposed paragraphs (a)(2) and
(b) in Sec. 375.303.
Section 375.401 Must I Estimate Charges?
NACAA supports estimates being given in writing. The AGCT suggests
changing ``binding estimate'' everywhere in the proposed regulations to
``guaranteed delivery price.'' It believes that the term ``estimate''
implies approximation rather than a fixed price. It further suggests
changing paragraph (b) to reflect the fact that the final charges will
be based on the actual weight ``or volume'' because this is consistent
with estimates to be given based on weight or volume.
Starving Students has a deep concern about requiring written
estimates. It states that a written estimate requires a personal visit
to the shipper's residence, which is costly. It estimates that
requiring a prior written estimate would add $250 or more to the cost
of the move and believes adding such costs would discourage many
shippers from hiring a mover for small moves.
Starving Students also believes that there is not enough advance
time to perform a visual inspection for a written estimate. Shippers
often schedule moves with very short notice, which does not permit a
prior visual inspection to be performed. The majority of Starving
Students' bookings are booked within seven days of the scheduled move.
Starving Students also notes that numerous moves occur from
locations where movers do not have a local office in the vicinity. A
prior visual inspection will be impossible in these cases. The consumer
would have to select a mover not based on price or service, but on the
proximity of a field estimator. Small movers offer low cost, no frills
alternatives to the large van lines. It argues that excluding small
movers, like Starving Students, from interstate moves based on a lack
of a national network of estimators is an unfair restraint of trade. In
summary, Starving Students believes that shippers and carriers want the
same thing, i.e., for the consumer to pay, and the carrier to receive,
a reasonable price for the transportation of household goods across
state lines.
AMSA believes this section provides that individual shippers must
be given a written estimate before an order for service is executed and
commends FMCSA for including these provisions in the proposed
regulations. Providing as many written estimates as possible will
certainly serve to reduce shipper complaints and misunderstandings over
final charges. However, AMSA believes there are certain aspects of this
requirement that should be considered further.
AMSA believes that most moves are booked at least two weeks in
advance with the majority booked a month or more in advance. However,
situations arise when moves are booked on much less than two weeks'
notice or sudden last-minute changes make the preparation of a written
estimate in advance of the move impossible. Situations brought about by
unusual circumstances such as unexpected employment changes, domestic
disputes, evictions, foreclosures, or emergency evacuations do not
always permit much in the way of advance notice. AMSA believes that
requiring a written estimate, which is, in turn, subject to the 110
percent rule, will cause some movers to refuse short notice shipments
to avoid being held to the 110 percent payment provision because there
is no opportunity to perform a visual inspection. Shippers will then be
left with fewer options to accommodate their requirements, e.g., move
on their own or use unlicensed movers who ignore FMCSA regulations.
AMSA recommends that an alternative procedure be adopted for short
notice shipments. Shippers would be given the opportunity to waive the
requirement for a written estimate (or to waive the 110 percent rule)
in short notice situations. The shipper will nonetheless receive
service from a licensed professional mover subject to all of the other
protections provided by the proposed regulations, it believes. It
suggests that paragraph (a)(2) should be amended by revising paragraph
(a) and adding a new paragraph (e), as follows:
(a) Before you execute an order for service for a shipment of
household goods for an individual shipper, you must estimate the
total charges in writing, except as provided in paragraph (e) below.
The written estimate must be in one of the following two types:
* * * * *
(e) Waiver--Signatures Required. Subject to the shipper's
agreement to waive the requirement for a written binding or non-
binding estimate, pursuant to the provisions of Sec. 375.407, you
may provide a price quotation which shall be your reasonably
accurate estimate of the approximate costs the individual shipper
can expect to pay. The
[[Page 35074]]
shipper's agreement to waive the written estimate requirement must
also include collection or credit arrangements acceptable to the
shipper for payment of the total charges. The waiver agreement must
be in writing and signed by the shipper before the shipment is
loaded, and a copy must be retained as an addendum to the bill of
lading.
AMSA believes for situations other than short-notice shipments, the
provisions of Sec. 375.407 that have been designed to deal with
``hostage shipments'' are a welcome addition to the proposed
regulations. AMSA routinely receives complaints from desperate shippers
whose shipments are being held by unscrupulous movers to be exchanged
for the payment of charges in excess of the 110 percent maximum. If the
government enforces these provisions, AMSA asserts, many complaints of
this nature will be eliminated.
In response to AGCT's suggestion that the term ``guaranteed
delivery price'' be used in this section and throughout in lieu of
``binding estimate,'' AMSA notes the term ``binding estimate'' is
rooted in the underlying statute, 49 U.S.C. 13704(a)(1).
Response to Comments
We did not require that a personal visit had to be made to execute
the written estimate when we proposed the section regarding written
estimates. We believe a written estimate could be executed after any
telephone interview with a prospective shipper. Whatever the estimator
estimates the total to be and communicates it to the shipper, the
estimator would follow it up in writing.
We believe that the requirement to provide a written non-binding
estimate, subject to the 110 percent rule, would cause some movers to
make more accurate estimates for short notice shipments. This is
because the incentive to add charges for additional services should be
less when a carrier would not have to be paid for at least 30 days
after delivery, and when the additional charges could be disputed by
the shipper. This should provide shippers with a more accurate estimate
to compare to other movers. Shippers would then be in a better position
to compare and pay a more realistic amount than what some movers have
allowed their agents to estimate.
In the interim final rule, we have added a requirement that the
mover provide each shipper with an explanation in writing of the
formula used when an estimate is given in terms of volume and then
converted to weight. We have added a requirement that the mover specify
the final charges will be based on actual weight and services, subject
to the 110 percent rule at delivery.
We have also added a requirement that the mover must determine
charges for any accessorial services such as elevators, long carries,
etc., before preparing the order for service and the bill of lading. If
the mover fails to ask the shipper about such charges and fails to
determine such charges before preparing the order for service and the
bill of lading, the mover must deliver the goods and bill the shipper
after 30 days for the additional charges.
In addition the interim final rule contains a new paragraph (b)
specifying that, at the time the estimate is presented, the mover must
specify the form of payment that it will accept at delivery.
To clarify the role of household goods brokers in the estimating
process, FMCSA has added a new Sec. 375.409, discussed below.
Section 375.403 How Must I Provide a Binding Estimate?
The AGCT suggests requiring all carriers include a binding estimate
provision in their tariffs and to provide a binding estimate if
requested by the consumer. It suggests the rules should not allow
carriers to unilaterally refuse to honor the binding estimate and
carriers should be required to provide the service as originally agreed
on. It recommends that carriers be permitted to negotiate with the
consumer for any additional services requested at the time of pickup,
either as a binding or non-binding estimate, and that the rules should
affirmatively require carriers to inquire of site conditions at the
destination or other matters which may result in the imposition of
additional charges at the delivery point. If the carrier fails to ask
whether there are any long flights of stairs, AGCT states, the carrier
should ``not be permitted to charge for any additional services at the
destination which may have reasonably been anticipated and not listed
as an additional charge in its estimate. This is reasonable, since the
carrier has experience in this area, and knows such services often
require additional charges.''
The AGCT believes carriers should be required to relinquish
possession and bill the consumer for such additional services rather
than demand immediate payment at the time of delivery.
AMSA comments about paragraph (a)(5), which provides three options
for the carrier if the shipper tenders additional household goods or
requests additional services that were not included in the original
binding estimate. While the first three options will cover most
situations, AMSA writes, other circumstances may result in a failure
between the mover and the shipper to agree to a price for the
additional services. Therefore, AMSA believes it is appropriate to
include a fourth option to address this situation as follows:
(iv) If an agreement cannot be reached as to the price and/or
service requirements for the additional goods or services, you are
not required to service the shipment.
Paragraph (a)(7) provides that the carrier may require full payment
for additional services requested by the shipper or required to be
performed at destination (such as stair carry, long carry, storage,
etc.). AMSA notes that during a typical moving scenario, the shipper
may also request additional services while a shipment is en-route, such
as a diversion with an extra pick-up or delivery to a friend or
relative at an intermediate point. AMSA believes that the proposed
language should be clarified to accommodate such requests as follows:
(7) If the individual shipper adds or requires additional
services en-route or at destination to complete the transportation,
and the services fail to appear on your estimate, you may require
full payment at the time of delivery for such added services.
AMSA states that AGCT's proposal that carriers be required to
include a binding estimate provision in their tariffs conflicts with
the permissive authority conferred by 49 U.S.C. 13704(a) (1) and
14104(b)(l), which provide that carriers ``may'' provide binding
estimates of charges.
AMSA believes that the AGCT's suggestions reflect a failure to
understand the operational conditions carriers often confront in order
to properly service shipments. During a typical move, additional
services may be required to complete the move or the shipper may
request additional services while the shipment is en-route or before
delivery. Since the transportation of household goods is a labor
intensive process, the failure of the shipper to properly inform the
carrier of the precise requirements necessary to properly remove the
contents of a residence, secure them in an over-the-road vehicle and
effect delivery at the new residence, can result in additional services
which, in turn, require the assessment of additional charges.
AMSA asserts that owner-operators perform the majority of the labor
services that are required to load, transport, and unload household
goods shipments. These individuals cannot, nor should they be expected
to, perform their services without compensation or
[[Page 35075]]
for compensation that is less than is necessary to attract their
services. AMSA believes that it should be apparent that the fact that
the costs and related charges incurred to perform a move may not agree
with an estimate of charges is not the exclusive result of carrier
misfeasance or deception as certain arguments suggest.
For example, AMSA notes, NACAA proposes that, by paying an
additional 10 percent, the shipper is not admitting the legitimacy of
the expense or waiving any rights to bring a private action under State
or local law. NACAA also proposes that the regulations state that it is
an unfair, misleading or deceptive act or practice for a mover to fail
to deliver the goods after an offer to pay 110 percent is made.
In response to the AGCT's recommendation that consumers be allowed
to reduce the amount they must pay for a carrier to relinquish a COD
shipment to ``substantially'' less than 100 percent of the estimate,
and that they be allowed to offset any damages from the balance of any
remaining charges owed to the carrier, AMSA states that certain AMSA
testimony in 1998 before the U.S. House of Representatives Subcommittee
on Surface Transportation of the Committee on Transportation and
Infrastructure warrants repeating:
The overwhelming majority of all movers are reputable, regulated
businesses. They perform an essential public service by complying
with the consumer and other regulations that govern our business and
were put in place by the former ICC. * * *
In its evaluation of this situation, and in its consideration of
possible legislative solutions, we urge Congress not to lose sight
of the fact that the moving industry performs 1.3 million interstate
moves each year, the vast majority of which are accomplished without
incidence and to the customer's satisfaction. It is the exceptional,
out of the norm ``horror story'' that attracts media attention and
portrays the industry in a bad light. No attention is paid to the
hundreds of thousands of incident-free moves that take place each
year. [footnote omitted] This is somewhat understandable since the
media concentrates on the exception rather than the rule in its
attempt to alert the public to what it perceives to be potential
problems. My industry understands that motivation. In fact, we also
firmly believe the public should be encouraged to make certain they
are selecting a licensed, reputable mover when they require moving
services. My point is, given the existing, somewhat negative climate
the moving industry is dealing with, Congress should not react in a
manner that will unduly burden the industry by imposing regulatory
obstacles that translate into less efficient, more costly service to
the public. (Testimony of Joseph M, Harrison, President, AMSA,
delivered August 5, 1998.)
Attached to Mr. Harrison's testimony were copies of a small
sampling of congratulatory letters AMSA members received from customers
expressing their satisfaction with the carrier's service. AMSA noted
those letters reflect the high level of service all reputable movers
strive to achieve. AMSA also noted no publicity was paid to the
customer's laudatory comments.
AMSA comments that in the context of estimates of charges versus
actual lawful charges, changes in service requirements usually occur
either because the shipper requested the changes or because the mover
determined they were necessary to properly service a shipment. AMSA
argues that one needs merely to review carrier tariffs to understand
the many services carriers must perform that may result in changes in
estimates of charges. These include vehicle detention, distance and
stair carries, impracticable operations, pickup or delivery on
Saturdays, Sundays or Holidays, stop-offs, appliance service, shuttle
service, and storage-in-transit. Available industry statistics obtained
from the AMSA Continuing Traffic Study for COD shipments transported in
1995 indicate the following:
11.7 percent of COD shipments required either an extra pick-up, an
extra delivery, or both;
14.2 percent required long carry service or elevator service;
14.0 percent required stair carries; and
2.8 percent required shuttle service to complete pickup or delivery
at inaccessible locations or waiting time to accommodate shippers'
schedules when accomplishing delivery.
In the aggregate, 56.8 percent of the COD shipments required these
or other additional services either at the shippers' specific request
or because such service was required to accomplish delivery.
AMSA also believes it is appropriate to consider the former ICC's
analysis of the difficulties associated with estimating. In concluding
that 10 percent above estimated charges is the appropriate margin for
collection by carriers at delivery, the Commission stated:
In doing so, we recognize that carriers should be permitted some
leeway in estimating charges. Calculating approximately the weights
of various items of household goods, arriving at an opinion of the
total weight of a shipment, and working out the probable costs of
accessorial services at origin and destination, all coupled with the
element of human error, should not be the bases for establishing the
amount beyond which the carrier should be required to extend credit
to the shipper. We therefore conclude that a 10 percent margin
should be allowed to the carrier in arriving at its reasoned
judgment of total charges, and that such a variation will not be an
unreasonable burden to the shipper. Practices of Motor Common
Carriers of Household Goods, 111 M.C.C. 427, 468 (1970). See also
Practices of Motor Common Carriers of Household Goods, 132 M.C.C.
599, 609 (1981).
Response to Comments
FMCSA agrees with the AGCT that, at the time of pickup, movers
should inquire of site conditions at the destination or other
circumstances which may result in the imposition of additional charges
at the delivery point. If the mover fails to ask whether there are any
long flights of stairs, for example, the mover would relinquish
possession and bill the shipper for such additional services rather
than demand immediate payment at the time of delivery. We have added
appropriate language to the interim final rule to incorporate these
comments.
In addition, FMCSA requires in Sec. 375.403(a)(8) in the interim
final rule that if a shipper asks for additional services after the
goods are in-transit, the mover must inform the shipper additional
money must be paid. If a mover believes additional services are
necessary to properly service a shipment after goods are in-transit,
the mover must inform the shipper what the additional services are
before performing those services. The mover must allow the shipper at
least one hour to determine whether he/she wants the additional
services performed. If the shipper agrees to pay for the additional
services, the mover must execute a written attachment to the bill of
lading and have the shipper sign the written attachment. This could be
accomplished through faxes between the parties.
If the additional services are not acceptable by the shipper and
the shipment is in transit, the carrier should deliver for the amount
of the original estimate and bill for any remainder after 30 days.
FMCSA believes it is the carrier's responsibility to ask and
determine at origin if the conditions at the destination require
additional services (i.e., shuttle, long carry, elevator, stairs, and
other accessorial services) to effect delivery, and to advise the
shipper of the cost of such additional services, as well as method of
payment for the services at the time of delivery. If the shipper
refuses to pay for additional services at origin and before loading,
the carrier has the option to accept or deny the shipment. See Sec.
375.403(a)(5) in the interim final rule. If the shipper refuses to pay
for additional services at the
[[Page 35076]]
destination when the carrier arrives for delivery, then the carrier can
attempt to negotiate different payment terms for the cost of additional
services; however, the carrier must deliver the shipment.
We disagree with AMSA that when the individual shipper adds or
requires additional services en-route or at destination to complete the
transportation, and the services failed to appear on the mover's
binding estimate, the mover may require full payment at the time of
delivery for such added services. We believe the better approach is to
allow the binding estimate to be paid on delivery and the additional
charges be billed at least 30 days after delivery. By requiring the
mover to determine the appropriate accessorial charges before loading
the shipment and permitting the carrier to refuse servicing the
shipment before loading, the problem of inaccurate estimates because of
surprise charges and services at destination will be minimized. If new
charges or services do occur, we will require the individual shipper to
pay them, but only after a period when the individual shipper has had
the opportunity to establish his or her financial relationships in the
new community. Requiring an individual shipper to raise hundreds, if
not thousands, of dollars at the destination in a very short time can
cause a severe hardship.
Section 375.405 How Must I Provide a Non-Binding Estimate?
NACAA supports movers retaining shipping records, including written
cost estimates, for a period of one year. The Consumers Union believes
the rules should require that carriers give consumers a maximum price
with a non-binding estimate. The Union suggests allowing a carrier to
self-determine how it provides the maximum price, whether through a
simplified tariff schedule handed to the consumer, or by calculating a
maximum price above the estimate. It asserts that information about a
maximum price enhances the consumer's ability to compare carriers.
AMSA believes consistency requires expanding proposed paragraph (b)
to address the circumstances presented when changes occur in the
services required to transport a shipment that moves on a non-binding
estimate just as is provided by Sec. 375.403(a)(5), (6), and (7) for
binding estimate shipments. AMSA recommends adding the following
similarly worded paragraphs to paragraph (b):
(7) If it appears, before loading, that an individual shipper
has tendered additional household goods or requires additional
services not identified in the non-binding estimate, you are not
required to honor that estimate. However, before loading the
shipment, you must do one of the following three things:
(i) Reaffirm your initial non-binding estimate;
(ii) Negotiate a revised written non-binding estimate listing
the additional household goods or services;
(iii) If an agreement cannot be reached as to price and/or
service requirements for the additional goods or services, you are
not required to service the shipment.
(8) Once you load a shipment, failure to execute a new non-
binding estimate signifies you have reaffirmed the original non-
binding estimate. You may not collect at delivery more than 110
percent of the amount of the original non-binding estimate, plus the
full payment for additional services that were performed en-route or
at destination that do not appear on your non-binding estimate.
AMSA believes the same additions should be made to the Your Rights
and Responsibilities When You Move publication, under the explanation
of Non-Binding Estimates.
AMSA also believes the words ``best estimate'' contained in
paragraph (b) should be changed to ``reasonably accurate estimate''
because estimates are just that and accuracy is the goal, not best or
worst or some other misnomer.
AMSA believes that the proposed requirement that movers retain
records of all non-binding estimates of charges for at least one year
from the date the estimate was prepared will be unnecessarily
burdensome. As part of the normal course of arranging for a move,
shippers are encouraged to obtain multiple estimates before their move.
As a result, most movers perform many more estimates than moves. AMSA
believes that the intent of paragraph (c) is to ensure that estimates
are preserved only for the moves that are actually performed. Thus,
AMSA suggests deleting paragraph (c) and adding the 1-year retention
requirement paragraph (b)(4), as follows:
(4) You must retain a copy of the non-binding estimate for each
move you perform for at least one year from the date you made the
estimate as an addendum to the bill of lading.
AMSA also recommends that Sec. 375.403(c) and Sec. 375.407(d)
should be amended to incorporate these recommended changes.
AMSA comments that the Consumers Union proposal to require carriers
to give consumers a maximum price with a non-binding estimate has been
addressed by Congress in 49 U.S.C. 14104(b), which does not mandate
binding estimates. According to AMSA, a requirement that carriers
furnish maximum prices would be tantamount to a mandated binding
estimate and inconsistent with the statute.
Response to Comments
FMCSA believes that whether a mover provides an estimate via
telephone or a personal visit, the estimate must be in writing. The
carrier should provide an estimate that is reasonably accurate and
include all services to be provided. The estimate should also be based
on the carrier's applicable tariff. This would not be a new burden, as
the carriers are already required to do this. The estimate must clearly
note the shipper is only required to pay 110 percent of the non-binding
estimate at time of delivery. We have added the following provisions to
the interim final rule to clarify how to handle changes to non-binding
estimates: Any changes in a non-binding estimate must be mutually
agreed to in a written attachment to the bill of lading. If a shipper
asks for additional services after the goods are in-transit, the mover
must inform the shipper additional money must be paid. If a mover
determines additional services are necessary to properly service a
shipment after the goods are in-transit, the mover must inform the
shipper what the additional services are. The mover must allow the
shipper at least one hour to determine whether he/she wants the
additional services performed. If the shipper agrees to pay for the
additional services, the mover must execute a written attachment to the
bill of lading and have the shipper sign the written attachment.
FMCSA agrees with AMSA that a requirement that carriers furnish
maximum prices would be tantamount to a mandatory binding estimate.
FMCSA also agrees with AMSA that paragraphs (a)(7) and (8) of Sec.
375.405 should parallel Sec. 375.403(a)(5)-(7) and has changed the
interim final rule language accordingly.
FMCSA also agrees with AMSA's comment on paragraph (b) and has
changed ``best estimate'' to ``reasonably accurate estimate.''
FMCSA also agrees that requiring the retention of all estimates for
one year would be burdensome, and has changed Sec. Sec. 375.403(c),
375.405(d), and 375.407(d) so that a mover need only retain for one
year copies of estimates for moves actually performed.
Section 375.407 Under What Circumstances Must I Relinquish Possession
of a Collect-on-Delivery Shipment Transported Under a Non-Binding
Estimate?
NACAA supports the requirement that all goods be released upon
payment of no more than 110 percent of the
[[Page 35077]]
estimated charge. It also suggests that language should be added
clarifying that the consumer, in accepting delivery, is not waiving any
rights to proceed against the mover in a private action to recover
transportation charges, or waiving State or local enforcement. It
argues that the rules should provide that it is unfair, misleading and
a deceptive act or practice to fail to deliver household goods when a
mover is offered 110 percent of the written estimate.
The AGCT recommends the rules substantially reduce the amount of
money that the consumer must pay to the carrier in order for the
carrier to relinquish possession of the shipment. The AGCT strongly
supports the deferred payment provision of paragraph (c) and believes
the consumer should be permitted to offset any damages from the balance
of any remaining charges owed to the carrier.
AMSA recommends that to avoid potential misunderstandings, the
wording of paragraph (a) should be changed to comport with the language
contained in current Sec. 375.3(d), as follows:
(a) If an individual shipper pays you at least 110 percent of
the estimated charges on a collect-on-delivery shipment on which a
non-binding estimate of the approximate costs was furnished, plus
the costs for additional services that were performed en-route or at
destination which were necessary to complete the transportation, you
must relinquish possession of the shipment at the time of delivery.
You may specify the form of payment acceptable to you.
Paragraph (c) includes an explanation of how carriers must handle
the collection of balances due in excess of the 110 percent amount paid
on shipments that moved under non-binding estimates. Although it
believes that the example provided in the NPRM is clear, AMSA would
like language added to avoid any misunderstandings concerning the
assessment of authorized service charges on delinquent payments as
would be authorized by proposed Sec. 375.807. AMSA recommends adding
the following sentence at the conclusion of paragraph (c) of Sec.
375.407:
If the $400 is not paid within the 30-day period following
issuance of your freight or expense bill, you must assess a service
charge of one percent of the freight bill, subject to a $20 minimum
charge for each subsequent 30-day period or fraction thereof.
AMSA also believes it is necessary to consider the language
contained in proposed Sec. 375.801(b) What types of charges apply to
subpart H?, and the discussion in Subpart H of the Your Rights and
Responsibilities publication as they deal with the extension of credit
to COD shippers.
AMSA believes the existing credit regulations make it clear that
they do not apply to COD non-binding estimate shipments that move under
the 110 percent rule. It refers to 49 CFR 377.215(a), and its reference
to 49 CFR 375.3(d). This language was lifted in its entirety from the
former ICC credit regulations, 49 CFR 1320.8(a), which contained the
same inapplicability reference, i.e., 49 CFR 1056.3(d). Under both
versions of these regulations, COD shippers must pay not less than 110
percent of the estimated charges on a non-binding estimate shipment at
the time of delivery. If a balance remains beyond the 110 percent
amount paid, the carrier may request payment of that amount not sooner
than 30 days after the date of delivery. There are no other credit
arrangements available for the COD customer. The extension of credit
regulations contained in 49 CFR 377.215 and 49 CFR 1320.8 apply to
shippers, other than COD shippers, to whom carriers extend credit. For
example, a national account shipper may arrange for the transportation
of its employees' goods under a carrier's tariff rather than under a
contract. Because of the repetitive nature of that shipper's business,
the carrier may elect to extend credit to the shipper for the payment
of transportation charges, in which case the provisions of Sec.
377.215 would apply.
AMSA believes that in the drafting of proposed Sec. 375.801 and
the narrative contained in Subpart H of Your Rights and
Responsibilities, we incorrectly assumed that the existing credit
regulations apply to COD shippers whose goods move under the 110
percent rule. AMSA believes the language and instructions in proposed
Sec. 375.801 are bound to create confusion among individual shippers
who may assume that their mover will defer its request for payment and
extend credit 30 days or more beyond the date of delivery. AMSA
recommends rewriting Sec. 375.801 and subpart H to avoid
misunderstandings between individual shippers and movers. It believes
the regulations and shipper guidance must make it perfectly clear
carriers will expect payment of not more than 110 percent of the
estimated charges on a COD non-binding estimate shipment at the time of
delivery. It also believes the mover rule and shipper guidance must
make it perfectly clear the shipper will be billed for any balance due
not sooner than 30 days after delivery.
Response to Comments
We do not agree with the AGCT proposal to reduce the amount of
payment required at delivery to substantially less than 110 percent of
the estimated charges. We believe the 110 percent requirement strikes a
fair balance between the carrier's right to receive prompt payment for
its services and the shipper's right to pay an amount reasonably close
to the estimated charges at the time of delivery. Allowing shippers to
offset damages from any remaining charges owed the carrier would
violate 49 U.S.C. 13702, which requires household goods carriers to
charge and receive the rate specified in their tariffs. In response to
NACAA, the right to take claims to court is established by law and does
not need to be specifically mentioned in these regulations.
FMCSA agrees with the AMSA comments. We have modified the section
to state that the mover may expect payment of no more than 110 percent
of the estimated charges on a COD non-binding estimate shipment at the
time of delivery and that the shipper will be billed for any balance
due not sooner than 30 days after delivery. We have also modified the
last sentence in paragraph (a) to state the mover must accept the form
of payment agreed upon at time of estimate, including credit card, and
relinquish the shipment.
Section 375.409 May Household Goods Brokers Provide Estimates?
We have added new Sec. 375.409 to eliminate confusion regarding
the authority of household goods brokers to issue estimates of
transportation charges. Twenty-five years ago, the Interstate Commerce
Commission concluded that brokers were prohibited from providing
estimates because the duty to comply with the household goods
regulations rests with the carrier, and shippers aggrieved by an act or
omission of a broker would be unprotected by the regulations. In Entry
Control of Brokers, 126 M.C.C. 476, 520 (1977), the Commission stated:
For example, if a broker provides a c.o.d. shipper with an
estimate it has made, on which the shipper relies, the shipper would
be deprived of the protection of 49 CFR 1056.8(b) of the household
goods regulations, which provides that where the transportation
charges exceed a carrier-made estimate by more than 10 percent, the
shipper must pay only 110 percent of the charges upon delivery and
is given a period of 15 days following delivery to make payment in
full. Since this protection applies only to carrier-made estimates,
a c.o.d. shipper who relies upon an incorrect estimate of a broker
will have to pay the carrier's entire freight charges
[[Page 35078]]
upon delivery, regardless of the extent the actual charges might
exceed the broker's estimate.
In Exec-Van Systems, Inc., Broker Application, 128 M.C.C. 669, 678
(1978), the ICC noted that a broker's proposal to make estimates
``would appear to be inconsistent with our established regulations,
since 49 CFR 1056.8(a) places the obligation for making estimates
solely upon the carrier. Applicant would, therefore, be advised not to
interfere with the carrier in the performance of his obligations in
making estimates, as this responsibility is intended by our regulations
to be performed solely by the carrier or his agent.''
Along these same lines, the Commission, in Ward Moving & Storage
Co., Inc., Household Goods Broker Application, 132 M.C.C. 589, 596
(1981), stated that ``49 CFR 1045.7(b) * * * implicitly forbids the
broker offering services or making contractual obligations which only a
carrier may offer. It must be clear to the public that the broker is
only an arranger of transportation, acting only in an advisory nature
and offering services ancillary to the physical transportation.'' The
rule cited in this quotation, now codified in 49 CFR 371.7(b),
prohibits brokers from misrepresenting themselves, directly or
indirectly, as carriers.
Although brokers may not enter into agency agreements with
household goods carriers because they are required to exercise
discretion in allocating traffic among carriers, we believe it would be
permissible for a carrier to enter into a more limited type of
agreement authorizing the broker to provide estimates on behalf of the
carrier. Under such an agreement, the carrier would have to adopt the
broker's estimate as a carrier-issued estimate and incorporate it into
the order for service and bill of lading for purposes of compliance
with part 375, particularly the 110 percent rule. We believe that under
these circumstances, the individual shipper would not be deprived of
the protections provided in part 375 because the carrier would still be
held accountable for complying with this part. However, a household
goods broker may not issue an estimate without entering into such an
agreement with a carrier because otherwise the requirements of part 375
would not apply to the broker-issued estimate.
Section 375.501 Must I Write Up an Order for Service?
NACAA supports requiring all prices, terms and services to be
presented in written documents signed by the mover and delivered to the
shipper before the household goods are packed and loaded; and that
these documents must be retained for a period of one year. NACAA also
urges us to prohibit movers from requiring shippers to sign blank or
incomplete documents, such as estimates, orders for service, or bills
of lading.
The AGCT suggests the rules should allow a shipper to proceed
against the mover if the mover fails to deliver the shipment in
accordance with the time requirements in the contract. It believes that
the shipper should not have to pay an additional fee to the mover to
ensure pickup and delivery of the goods on the specific dates or within
a specific period. The AGCT argues that we should grant the shipper a
three-day grace period allowing the shipper to rescind the order for
service without any penalty, provided the ordered services are
scheduled more than three days after the order is written and that the
mover should provide shippers with the items listed in Sec.
375.503(b)(2), (4), (9), (10), and (11).
The AGCT argues that paragraph (a)(5) should allow the shipper to
deduct any penalties or per diem amount due to the shipper from any
amounts that the shipper owes to the carrier. Alternatively, the mover
should be required to make payment to the shipper at the time of
delivery in the manner specified by the shipper to level the playing
field and allow both parties to collect amounts due them at the same
time. Paragraph (a)(6) should require the carrier to affirmatively note
the shipper's denial of any special or accessorial services that might
be reasonably expected.
In response to the AGCT comments, AMSA argues that shippers do not
ordinarily incur additional costs for delivery date commitments unless
equipment availability is limited and a specific request requires
special operations. With respect to the shipper remedies suggested by
the AGCT, AMSA states that: (1) Shippers routinely cancel orders for
service for a variety of personal reasons and incur no penalty for
doing so; (2) as a general rule, the information listed in Sec.
375.503(b)(2), (4), (9), (10), and (11) is routinely furnished when an
order for service is executed; (3) any amount that may be due a shipper
as a result of loss, damage or inconvenience must be presented and
processed pursuant to the regulations at 49 CFR part 370, or the
carrier's lawful tariffs; and (4) if an accessorial service is
requested or required, presumably performance of that service is
necessary to safely transport a shipment. AMSA questions the
advisability of a rule that would permit shippers to refuse services
that ``might be reasonably expected.''
Response to Comments
Although carriers may routinely permit shippers to cancel orders
for service without penalty and furnish references to several bill of
lading provisions when an order for service is executed, the comments
from the AGCT indicate that not all carriers adopt such practices. We
believe that mandating a 3-day grace period and reference to the bill
of lading provisions provides additional consumer protection (See new
paragraphs (e) and (a)(6) through (a)(10) in the interim final rule).
We adopt the AGCT's comment about paragraph (a)(6) (which is
codified at (a)(11) in the final rule) and agree with AMSA that a
required accessorial service may be necessary to safely transport a
shipment if the mover could reasonably expect it. We require, in new
paragraph (b) of the interim final rule, that if an accessorial service
is necessary to safely transport a shipment, the mover must refuse to
accept the shipment. As a safety agency, we will not allow the mover to
provide unsafe transportation even when requested by an individual
shipper.
In response to comments by NACAA, in new paragraph (d) in the
interim final rule we are prohibiting movers from requiring shippers to
sign blank or incomplete estimates, orders for service, bills of
lading, or any other blank or incomplete documents pertaining to the
move.
Must I Write Up an Inventory?
NACAA believes the rules should mandate shipment inventories that
itemize every box and item consigned to protect shippers and movers for
all weight-rated and hour-rated moves, unless the shipper signs a clear
and conspicuous waiver of the inventory. NACAA recommends that an
inventory form also be required.
AMSA concurs in the NACAA recommendation stating that detailed
inventories of the goods tendered for transportation serve to protect
the interests of shippers and carriers. AMSA recommends inclusion of
the following provision:
Proposed Sec. 375.502 Must I Write Up an Inventory?
(a) You must prepare a written, itemized inventory for each
shipment of household goods you transport for an individual shipper.
The inventory must identify every carton and every uncartoned item
that is included in the shipment. When you prepare the inventory, an
identification number that corresponds to the inventory must be
placed
[[Page 35079]]
on each article that is included in the shipment.
(b) You must prepare the inventory before the shipment is loaded
in the vehicle for transportation in a manner that provides the
individual shipper with the opportunity to observe and verify the
accuracy of the inventory if he or she so requests.
(c) You must furnish a complete copy of the inventory to the
individual shipper before beginning to load the shipment. A copy of
the inventory, signed by both you and the shipper, must be provided
to the shipper, together with a copy of the bill of lading, before
you begin to load the shipment.
(d) Upon delivery, you must provide the shipper with the
opportunity to observe and verify that the same articles are being
delivered and the condition of those articles. You must also provide
the shipper the opportunity to note, in writing, any missing
articles and the condition of any damaged or destroyed articles. In
addition, you must also provide the shipper with a copy of all such
notations.
(e) You must retain inventory forms for at least one year from
the date you created the form.
AMSA noted its recommended addition would also entail a change in
that portion of the Your Rights and Responsibilities publication which
deals with this issue (Subpart E--Pick Up of My Shipment of Household
Goods).
AMSA therefore recommends adopting the following language in lieu
of that proposed:
Should my mover write up an inventory of the shipment?
Yes. Your mover should prepare an inventory of your shipment
before loading. The inventory should be a detailed listing of the
cartons and uncartoned articles included in your shipment noting any
damage or unusual wear to any articles. The purpose of the inventory
is to make a list of the articles included in your shipment and a
record of the condition of each article.
After completing the inventory both you and the driver should
sign each page. Before you sign it, make sure that the inventory
lists every item in the shipment and that the entries regarding the
condition of each article are accurate. You have the right to note
any disagreement in the form. When your mover delivers your
shipment, your ability to prove that any articles were lost or
damaged may depend on the accuracy of the inventory. Your mover
should give you a copy of the inventory. Be sure to keep your copy
in a safe place; it is an important part of your shipment records.
Your mover will keep the original. If your mover's driver completed
the inventory, the mover will attach the complete inventory to the
bill of lading as an addendum.
Response to Comments
FMCSA agrees with NACAA and AMSA. We have added the proposed
requirements in Sec. 375.503 of the interim final rule and included
that a mover must write an inventory of all items involved in a move,
assigning each item an identification number. The mover must prepare an
inventory before it allows its agents or drivers to load the shipment.
The mover must provide a complete copy to the shipper before loading
the shipment. Upon delivery, the mover must provide the shipper with an
opportunity to verify the same articles are being delivered and the
condition of those articles. The mover must provide the shipper the
opportunity to note any missing articles and the condition of any
damaged or destroyed articles. Finally, the mover must provide the
shipper with a copy of all such notations.
Section 375.503 Must I Write Up a Bill of Lading?
NACAA supports the requirement that all prices, terms, and services
be presented in written documents signed by the mover and delivered to
the shipper before the household goods are packed and loaded and that
the allowable form of payment be specified in writing. NACAA supports
requiring movers to retain shipping records, including bills of lading,
for a period of one year.
The 25AG recommend that the rules should require clear and
conspicuous disclosure on all documents, including estimates and bills
of lading, of what form of payment will be required upon delivery of
household goods, if different from the form of payment received at the
outset of the transaction. If a carrier accepts a credit card as only a
guarantee, the 25AG assert, the carrier should disclose that the credit
card is not the form of payment that will be accepted upon delivery and
also must disclose the form acceptable at delivery.
Response to Comments
FMCSA has modified this section (renumbered as Sec. 375.505 in the
interim final rule) based on the comments. New paragraph (b)(4)
requires movers to specify on the bill of lading the form of payment
acceptable at delivery, which must be the same form of payment entered
on the estimate and order for service. New paragraph (b)(14) specifies
that the attachments to the bill of lading are an integral part of the
bill of lading contract. Also, proposed paragraph (b)(4) has been
deleted as unnecessary.
Section 375.505 Must I Determine the Weight of a Shipment?
The 25AG strongly agree with the proposed opposition to the use of
non-certified on-board trailer scales.
Air-Weigh states that its scales convert truck and trailer air-
spring air pressure to accurate weight display. Its scale determines
how much weight per pound of air pressure the suspension is supporting
by comparing empty and loaded vehicle weights with air pressure
required to support the weight. It states that once calibrated, the
scale displays the on-the-ground weight of each axle group to within
200 to 300 pounds of an accurate platform scale. Comparative
statistical research is being conducted, which Air Weigh intends to
forward to the FMCSA when it becomes available.
The Cat Scale Company believes that on-board weighing is not in the
best interest of the shipper when addressing the issue of shipper
protection. It stated that ``the allowance of on-board weighing would
eliminate the customer being given a certified, `legal for trade'
weight of their goods as performed by a third party. The owner of the
on-board scale would actually be the party transporting the goods and
therefore have an interest in the weight of those goods.''
Cat Scale states further that full length certified scales are
governed by regulations established by the National Institute of
Standards and Technology (NIST) under the U.S. Department of Commerce.
Cat states these regulations are published in the Handbook 44
publication. Most States have adopted Handbook 44 as the State's
governing regulations or have regulations in force that are based, in
large part, on Handbook 44. Cat asserts that each State very
aggressively checks certified scales to insure their compliance with
Handbook 44 and in turn seals the scale to show that the scale may be
used to give a ``legal for trade'' weight.
Cat also states that significant ongoing maintenance of a certified
scale is necessary in order to keep it 100 percent accurate and able to
meet Handbook 44 requirements. For example, Cat uses a 200,000 pound
capacity scale, having 10,000 graduations of 20 pounds each found in
Table 6 Handbook 44 Section 2.20, Scales, pages 2-23. In order for Cat
to maintain proper calibration of that scale, when Cat applies 25,000
pounds of test weights to the scale, the maximum deviation tolerance
allowed by NIST would be three graduations or 60 pounds. When Cat
initially placed into service the scale, the maximum allowable
deviation was one half that or 30 pounds. It is Cat's understanding
that the deviation of an on-board scale (using Air-Weigh's model 5600
as an example) is 200-300 pounds per axle group. That equates to as
much as 900 pounds of potential error per typical load. If the average
household goods load weighs 6,023 pounds, Cat believes 900 pounds
represents a significant percentage of
[[Page 35080]]
that total and could translate into significant unnecessary costs to
the shipper.
Cat re-calibrates its scale every 90 days or four times per year.
Cat states that typically a State will check calibration and reseal the
scale once per year. However, Cat's scale is subject to a random check
by the State at any time.
Important to the certified weighing process, Cat believes, is the
necessity of the scale to be constructed on a level plane with a 10-
foot level approach at each end of the scale. If the scale is not
absolutely level, the potential for error exists and is multiplied the
more out of level the condition is. Cat asserts it is very difficult to
achieve a level surface on many streets or driveways.
Cat states the remote sensor processor on an on-board scale
converts the pressure readings at the axle group's air spring to a
number and updates the scale every 4.8 seconds. By contrast, on its
scale unit, the scale indicator reads data from each load cell 16 times
per second, or 76 times more often.
In addition, Cat states Air Weigh's on-board scale systems are not
approved by the National Type Evaluation Program of the NIST and are
totally unregulated by any standards organization. Cat states it is
concerned with shipper protection and customer satisfaction and
guarantees its weights to be accurate. If a driver weighs legal on its
scale and then receives an overweight citation, Cat states it will
either reimburse the driver or trucking company for the amount of the
fine, or it will appear in court with the driver as an expert witness.
Cat also keeps copies of all of its scale tickets for seven years as
required by law. This gives the shipper the opportunity to request a
copy of the original ticket if he/she suspects fraud. In the case of
its weights being used for billing purposes, Cat's guarantee still
applies to make sure that drivers get paid for what they've hauled--no
more, no less.
Cat does not think it is in the best interest of the shipper for
FMCSA to approve on-board scales for the moving and storage industry
because of the potential for error and the lack of a governing body to
check the accuracy of the scale system. These factors could equate to
shippers incurring additional unnecessary expenses in connection with
their household moves.
Weighing Consultants, Inc., (WCI) believes that on-board weighing
systems for trucks and trailers are available that meet the tolerance
requirements for commercial application, which are 0.1 percent of the
applied (net) load. WCI attached to its comments the National Type
Evaluation Program of the NIST Certificate of Conformance 99-091 issued
to NORAC Systems International for an on-board weighing system. WCI
stated the request by Air-Weigh for FMCSA to accept Air-Weigh's
technology was based on data accurate at best to 1.0 percent of applied
load. WCI recommends rejecting it based on product already available
that meets commercial requirements.
A WCI representative made a household move and the net weight of
the household goods was 9,540 pounds. WCI stated that this represented
the contents of a four-bedroom house and was above the average net
weight of a household move. On a certified platform scale the tolerance
allowed on this 9,540 pounds would be plus or minus 20 pounds. (WCI
refers to Table 6 Handbook 44 Class IIIL scale). The 200-300 pound
weight differential stated by Air-Weigh is 10 to 15 times greater. WCI
stated, ``If in fact the differential of the Air-Weigh system is 200-
300 pounds per axle group, the differential from a certified scale
would be 20 to 30 times greater than the presently allowable tolerance.
Handbook 44 also states the allowable tolerance for Class IIII scales,
allowed for use by law enforcement only, at a maximum of 5 divisions
which would be 100 pounds on an axle scale. The Air-Weigh product
accuracy is stated as 2 to 3 times the generous Class IIII tolerance.''
WCI believes FMCSA should continue the policy of requiring all
weights to be determined on scales certified by a State's Weights and
Measures Department. This policy, it believes, will continue to ensure
equity in the marketplace and leave the statutory authority for weights
and measures with the states. WCI asserts that the National Conference
on Weights and Measures and NIST Office of Weights and Measures have
always encouraged the development of new technology and evaluate many
new weighing device types each year under the National Type Evaluation
Program. WCI believes Air-Weigh should be encouraged to submit its
product to the National Type Evaluation Program for evaluation as its
competitor NORAC System International did.
The Sisson Scale and Equipment Company, Inc., supports the current
regulation requiring the use of certified scales for independent
shippers by the moving and storage industry.
The Deskin Scale Company, Inc. states that the regulatory guide for
its industry has been Handbook 44 since 1949. The NIST has a statutory
responsibility for ``cooperation with States in securing uniformity of
weights and measures laws and methods of inspection,'' Deskins states.
The only on-board weighing systems that Deskin was aware of that
are actually accepted for commercial use are fork lift scales and
lifting devices for trash haulers, which use load cells connected to
the forks for measuring and do not in any way derive weight information
from the pressure of hydraulics or air. Deskin stated its experience
has been that ``those who do rely on hydraulics or air pressure do not
repeat to any degree of accuracy which is demanded by H-44 and
therefore in the interest of the shipper should not be considered for
use.'' It is Deskin's opinion that the shipper's best interest will
only be served by use of those devices that meet the requirements of
Handbook 44.
The Action Scale & Weighing Systems, Inc., states Toledo, Ohio is a
``hub'' for truck traffic coming from the North, South, East, and West,
including Michigan ``train trucks'' and grain vehicles from Canada. It
is Action's opinion that ``on-board weighing would not be in the best
interest of the public, as the fox would virtually be guarding the hen
house. The only way to insure accurate weights is on a static scale
operated by a third party.''
The California, Colorado, Idaho, Michigan, New Hampshire, Oregon,
and Pennsylvania Departments of Agriculture strongly support the use of
certified scales for all aspects of commerce done by weight. They
support the retention of the regulation requiring the moving and
storage industry to use certified scales when conducting commerce where
cost is determined by weight. The Pennsylvania Department of
Agriculture believes the use of on-board non-certified scales will be
an invitation for unscrupulous operators to defraud shippers, based on
its experience discovering and prosecuting moving and storage companies
for falsifying weighmaster certificates by ``bumping.'' ``Bumping'' is
any method where additional charges to the customer are claimed by the
moving and storage company by adding additional weight to the load or
by adding weight to the scale and then weighing the load.
The State of Idaho Department of Agriculture, Bureau of Weights &
Measures, does not dictate what type of scales the moving and storage
industry uses, as long as they are commercial type scales, and are
therefore capable of being certified. It believes there are a myriad of
devices made today that fall short of the requirements for commercial
use, but are manufactured for estimation, internal accounting, sorting,
or other non-commercial applications. The Idaho Department of
[[Page 35081]]
Agriculture states there is at least one on-board weighing system for
semi-trailer use (Weigh-Tronix, model STS-50, 50,000 times 20 pounds)
that has a certificate of compliance on the market today.
The Idaho Department of Agriculture is concerned that non-
commercial type on-board weighing systems are being used. It is also
concerned that manufacturers are using this rulemaking to try to
circumvent the National Type Evaluation Program of the NIST
requirements being met by other scale manufacturers. The Idaho
Department of Agriculture encourages Air-Weigh and Hi-Tech Scale to
work to get their products approved through the National Type
Evaluation Program system.
The Idaho Department of Agriculture notes that the National
Conference on Weights and Measures along with NIST advisers have
determined the requirements for commercial scales. The tolerances and
performance requirements have been set to prevent either the buyer or
seller from being damaged in transactions. These standards are
recognized not only in every jurisdiction in this country but
throughout the world. The Idaho Department of Agriculture urges FMCSA
to ensure any rule change continues to require shipping and storage
charges be determined on a commercial scale--whatever form that scale
may be, a vehicle scale or on-board scale system.
The Michigan Department of Agriculture would not object to the non-
commercial use of non-certified scales, provided they are clearly
marked ``Not Legal For Trade'' and could thus be used for estimates
only. Otherwise, the Michigan Department of Agriculture strongly
supports maintaining the ``certified scale'' requirement for commercial
sales.
The Handbook 44 serves the California Department of Agriculture as
a uniform model governing performance, use, and testing of commercial
weighing and measuring devices. The California Department of
Agriculture urges FMCSA to retain a policy of requiring weights upon
which charges are based to be determined on scales that have been
tested and sealed by State weights and measures officials applying the
requirements of Handbook 44. Companies who wish to offer weighing and
measuring devices for use in determining charges for goods or services,
should ensure that they comply with the uniform standards contained in
Handbook 44, and should continue to be required by FMCSA to submit such
devices to testing and verification by weights and measures officials.
The Oregon Department of Agriculture requires that: (1) Any
weighing or measuring device must be licensed, tested and approved by
the Oregon Department of Agriculture Measurement Standards Division
when the device is used commercially for the measurement of vehicles;
and (2) any commercial weighing or measuring instrument or device must
be issued a Certificate of Conformance traceable to NIST.
The New Hampshire Department of Agriculture believes that on-board
scales are not in the best interest of shippers and competitors. The
potential error of 200-300 pounds per axle group is unacceptable, as
well as its ``incorrect'' status under Handbook 44.
The Colorado Department of Agriculture does not have a problem with
on-board weighing. It believes any rules that are adopted must take
into account the individual State requirements for commercial measuring
devices. All states currently have requirements for commercial
measuring devices that are rooted in years of experience. These
requirements manifest themselves as Handbook 44.
The Colorado Department of Agriculture states that if FMCSA elects
to allow the use of on-board weighing systems, it must (1) ensure that
the system is as accurate as the certified scales that are currently
used for shipping; and (2) ensure the on-board weighing system meets
the same standards, with regard to specifications, as other commercial
devices, i.e., that it meets the criteria of Handbook 44. The Colorado
Department of Agriculture believes that meeting Handbook 44
requirements will ensure that both the shipper and carrier are treated
equally, and scale manufacturers can compete equitably.
AMSA urges us to acknowledge the advantages of advances in
technology that have become available throughout the moving industry
for the weighing of shipments. It asserts that the use of on-board
scales promotes shipper satisfaction by producing immediate, on-site
shipment weights without the need to follow a tractor-trailer to an
available scale. It proposed adding new Sec. 375.523, which it
believes will protect shippers' rights by requiring that shippers
observe the weighing procedure, and allow them to reject the results of
the on-board weighing procedure and elect to have the shipment weighed
on a traditional scale. The recommended provision would read as
follows:
If a trailer is so equipped, at the shipper's option, shipment
weight may be determined with an on-board trailer scale if the
shipper observes the weighing of the trailer both before and after
the loading of the shipment. If the shipper accepts the final weight
determination, you must obtain a signed statement to that effect and
retain it as part of the shipment file. If the shipper rejects the
on-board scale weight determination, the shipment must be weighed on
a certified motor vehicle scale in accordance with the requirements
of Sec. 375.509.
Response to Comments
FMCSA opposes the use of non-certified on-board trailer scales. The
comments show they are not in the best interest of shippers. On-board
weighing has the potential for manipulation of actual weight. While we
acknowledge there may be advantages to using new technology for the
weighing of shipments, AMSA and its device manufacturer have not
produced evidence that its system is compliant with Handbook 44.
FMCSA believes the issue of on-board trailer scales should be
discussed in a separate and specific rulemaking. We believe the moving
industry must work with the NIST and the States before asking us to
allow their use. The NIST is the government agency responsible for
promoting uniformity in United States weights and measures laws,
regulations, and standards. The NIST regulations achieve equity between
buyers and sellers in the marketplace and enhance shipper confidence in
the marketplace. FMCSA does not have this expertise and will defer to
the NIST for its opinions in this matter. The NIST does not want FMCSA
approving a device that may set non-uniform weight regulations and may
achieve inequality between buyers and sellers in the marketplace and
degrade shipper confidence in the marketplace.
The moving industry may also want the NIST to research the issue as
allowed by 15 CFR 200.101 Measurement research. The NIST provides basic
research and development activities aimed at meeting broad general
needs. The NIST may also undertake investigations or developments to
meet specialized physical measurement problems of an industrial group
using funds supplied by the requesting organization.
AMSA has not indicated how it will safeguard shippers' rights other
than requiring that shippers observe the on-board weighing procedure
and permitting them to reject the results of this procedure. The
comments by the weighing industry and State regulatory agencies suggest
that AMSA's methods and device may provide false weights.
[[Page 35082]]
AMSA does not specify how often the device would be calibrated, who
would ensure calibration accuracy, and what happens if the calibration
was done in another State and the shipper wishes to contest the weight
in another State.
FMCSA has added a requirement in the interim final rule that the
mover must provide a written explanation of volume to weight
conversions, when the mover provides an estimate by volume and converts
the volume to weight. Also, this section has been renumbered as Sec.
375.507.
Section 375.507 What Is a Certified Scale?
The regulatory text of proposed Sec. 375.507, which defined
``certified scale,'' has been moved to Sec. 375.103, where it is more
appropriate.
Section 375.509 How Must I Determine the Weight of a Shipment?
The 25AG believe the proposed rule fails to provide the shipper
disclosures necessary to assure that carriers do not double bill on so-
called split loads. They allege shippers are presented with recently
issued official weight tickets from a nearby certified public scale at
the time of delivery; however, the shipper is unaware that a partial
load bound for another destination remains onboard, and that it formed
a portion of the total load reflected on the ticket. They believe the
rules should require that each shipper's shipment must be weighed
separately.
AMSA states that a requirement that each shipper's shipment be
weighed separately would result in operating gridlock. To comply with
such a rule, carriers would be required to unload one shipment that is
on a van to accommodate a second shipment solely for weighing purposes.
The impracticalities of coordinating such operations should be obvious.
Response to Comments
FMCSA is not adopting the 25AG's proposal. FMCSA believes it is
economically costly and time consuming to weigh each shipment
separately as suggested by the 25AG. The rules as proposed are
adequate. The weight must be determined by weighing the shipment at
origin or back weighing the shipment. The shipper is further protected
by the regulations that allow a shipper to witness the weighing and the
right to request a re-weigh. Final transportation charges are based on
actual weight in accordance with applicable tariff provisions.
Section 375.511 May I Use an Alternative Method for Shipments Weighing
454 Kilograms or Less?
AMSA states this section adopts the provisions of the current
regulations, which provide that shipments weighing 1,000 pounds or less
may be weighed on a certified platform or warehouse scale in lieu of a
scale designed for weighing motor vehicles. AMSA understands the
agency's concerns that an increase in the minimum shipment weight
threshold might allow movers to charge a minimum rate at the higher
weight threshold when the shipment actually weighs less and that
defining a small shipment as one weighing 3,000 pounds or less could be
perceived as giving our blessing to an increase in the minimum rate
threshold in household goods carriers' tariffs. However, AMSA does not
agree that these concerns will actually occur if the 1,000 pound small
shipment weight is increased. AMSA argues that tariff charges,
historically, have not been linked to the minimum weight determination
threshold. For more than 40 years, AMSA states, the tariff minimum
weight remained at 500 pounds (even though the minimum scale weight was
1,000 pounds) as personal effects shipments continued to gradually
increase in weight. As a result, in June 1984, the tariff minimum was
increased to 1,000 pounds, not because the increase corresponded to the
threshold, but because of increases in the fixed administrative costs
associated with the servicing of small shipments.
As a matter of practice, the moving industry already considers
shipments weighing less than 3,000 pounds to be classified as small
shipments and has adjusted its principal tariff series accordingly. A
small shipment surcharge applicable to shipments weighing less that
3,000 pounds was initiated in May 1989 to offset the administrative
costs associated with handling these shipments. This surcharge remained
in effect until May 1996 when it was incorporated into the line-haul
tariff rates. Therefore, an increase in the minimum scale weight would
not impact existing tariff provisions since they have already been
adjusted to reflect the costs associated with the handling of small
shipments.
With this history in mind, and because the minimum scale weight and
the minimum tariff rate have been unrelated to one another, AMSA does
not agree that an increase in the minimum scale weight to 3,000 pounds
will have a causal effect on tariff rates. Instead, AMSA believes that
increasing the weight limit to 3,000 pounds would promote greater
efficiency in the weighing of shipments on certified warehouse and
platform scales which will, in turn, help reduce tractor-trailer
traffic and congestion in areas where larger motor vehicle scales are
operated.
AMSA notes that the proposed and current regulations require that
if shipment charges are weight-based, the carrier must obtain a gross
and tare weight for each shipment. Separate weight tickets identifying
each weighing of a shipment are required to be provided to the shipper.
The certificates list the scale name, location, weighing date,
identification of tare, gross or net weights, vehicle identifications,
and the name of the shipper. Clearly, this is sufficient to ensure that
carriers obtain accurate shipment weights.
Response to Comments
We agree with the AMSA comments on this section and have modified
the interim final rule to raise the weight threshold from 454 kilograms
(1,000 pounds) to 3,000 pounds.
Section 375.513 Must I Give the Individual Shipper an Opportunity to
Observe the Weighing?
NACAA supports requiring movers to afford shippers an opportunity
to observe weighing of their shipments.
Response to Comments
The proposed observation requirement is adopted without change.
Section 375.515 May an Individual Shipper Waive His/Her Right To
Observe Each Weighing?
AMSA argues this provision should be modified. AMSA recommends the
provision should indicate that the shipper's decision not to observe
weighings constitutes a waiver of that right. It argues that proposed
Sec. 375.513 clearly requires that carriers ``* * * must give the
person who will observe the weighings a reasonable opportunity to be
present to observe the weighings.'' Assuming a shipper elects not to
observe the weighings, to be consistent, Sec. 375.515 should be
amended to indicate that right was waived. 49 U.S.C. 14104(c) requires
that shipper waiver of the right to observe re-weighings must be
accomplished in writing. Therefore, to accommodate both situations,
AMSA recommends revising the section to read as follows:
If an individual shipper elects not to observe a weighing, the
shipper is presumed to have waived that right. If an individual
shipper elects not to observe a re-weighing, the shipper shall waive
that right in writing. This does not affect any other rights of the
individual shipper under this part or otherwise.
[[Page 35083]]
Response to Comments
FMCSA agrees with AMSA and has added language to the interim final
rule that a shipper's waiver of the right to observe a re-weighing must
be in writing. We allow the shipper to send the writing via fax, e-
mail, or any other electronic means.
Section 375.521 What Must I Do if an Individual Shipper Wants To Know
the Actual Weight or Charges for a Shipment Before I Tender Delivery?
NACAA supports requiring movers to comply with the shipper's
requests for notice of the shipment weight and charges before delivery.
Response to Comments
The proposed notification requirement is adopted without change.
Section 375.601 Must I Transport the Shipment in a Timely Manner?
NACAA supports requiring movers to transport goods in a timely
manner.
Response to Comments
The proposed reasonable dispatch requirement is adopted without
change.
Section 375.605 How Must I Notify an Individual Shipper of Any Service
Delays?
NACAA supports requiring movers to retain notices relating to
service delays for a period of one year and supports requiring movers
to notify shippers of service delays.
AMSA believes there is a basic problem with the language employed
in this section. The section states that a carrier must notify a
shipper of service delays. AMSA believes the inconsistency lies in the
fact that if a carrier is unable to pick up a shipment on the agreed
upon date(s), it must notify the shipper of the delay and amend the
order for service. It makes little sense to AMSA to amend an order for
service for delay at origin. The practical result of this section, as
written, is that carriers will never be responsible for delays at
origin because the order for service will reflect that the shipment was
actually loaded on the agreed upon pick-up date. Appropriate changes
should be made.
In addition, AMSA notes that paragraph (b)(6) requires the mover,
in the instance of delay notification, to furnish the shipper with a
``true copy'' of the notice by first class mail or in person. AMSA
believes this provision, while carried over from the existing
regulations, will be no more feasible to perform under the proposed
regulations than it is under the existing regulations. During the
course of a move, while both the shipment and the shipper are in
transit, there is no practical benefit in mailing a copy of the delay
notification to the shipper. Since the shipper, who has already
received notice of a delay by telephone, telegram, or in person is not
at his old or his future address, no purpose is served by mailing a
duplicate notice. AMSA submits that the solution lies in simply adding
the words ``if the shipper requests a copy of the notice.'' Such a
revision would ensure that ``interested shippers'' who desire a copy of
the notice for their records or to support a claim for delay or
inconvenience will be furnished a copy, while duplicate copies would
not be automatically forwarded to other shippers who have already
received their shipments and have no need for the notice.
Response to Comments
FMCSA agrees with AMSA's comments on this section and has made
appropriate changes in the interim final rule language.
Section 375.607 What Must I Do if I Am Able To Tender a Shipment for
Final Delivery More Than 24 Hours Before a Specified Date or Period of
Time?
The AGCT comments that carriers should be required to deliver the
shipment in accordance with the delivery dates or periods specified in
the contract. Paragraph (c) should preclude a carrier from limiting its
liability for storage-in-transit to the delivery period. It is
inequitable to allow a carrier to avoid any liability for delays in
shipment while providing no similar mechanism to excuse a shipper's
delay, even if the delay is caused by circumstances beyond the
shipper's control. It recommends we should permit movers only limit
their liability to the last day of the delivery period specified in the
bill of lading.
AMSA comments on this AGCT proposal that paragraph (c) preclude
movers from limiting their ``liability'' for storage-in-transit. In
addition, it is suggested that this subsection be modified to only
permit the mover to limit its ``liability'' to the last day of the
period specified in the bill of lading. The proposed regulation speaks
in terms of ``responsibility'' and not ``liability.'' The rule is
apparently intended to authorize movers, at their option, to not assess
storage charges, or, alternatively, to assess charges beyond the agreed
date. In support of the AGCT's position, it argues that it is
``inequitable'' to allow carriers to avoid liability for delays with no
similar mechanism to excuse shipper delays. AMSA believes that movers
routinely honor delay and/or inconvenience claims in accordance with
their tariff provisions that are not intended to avoid carrier
liability.
Response to Comments
FMCSA agrees with the comments of this section.
Section 375.609 What Must I Do for Shippers Who Store Household Goods
in Transit?
NACAA supports requiring movers to retain notices issued under this
section for a period of one year.
The AGCT comments that the nine-month limitation on a shipper's
right to file a claim against the carrier for damage or loss of goods
in paragraph (b)(2) runs counter to a shipper's right to bring an
action within the State of Connecticut's statutory period. It believes
the rules should acknowledge the shipper's right to rely on a State-
established statutory period for bringing an action against the
carrier. Any other action is not shipper protection in its opinion. It
also recommends that we modify paragraphs (a) and (b) to impose
liability on the carrier until ten days after the carrier actually gave
notice to the shipper that the period of storage-in-transit will expire
and the shipment will be governed by rules and charges of the
warehouseman. It believes the ten-day period is consistent with the
provisions in paragraph (c).
AMSA asserts that paragraph (d) will require that notifications to
shippers regarding the expiration of storage-in-transit (SIT) be
accomplished by certified mail, return receipt requested. This
provision should be expanded to include notification by facsimile
transmission and overnight courier. Such a change will permit movers to
take advantage of faster methods of transmitting the required
notifications. This is particularly important for SIT periods of less
than 10 days when only 1-day notice is required as contemplated by
Sec. 375.609(e).
In connection with paragraph (b)(2), AMSA believes that the AGCT's
suggestion conflicts with the nine-month statutory period provided for
the filing of claims for loss or damage in 49 U.S.C. 14706(e)(1).
In response to the AGCT proposal to retain carrier liability until
10 days after the carrier actually gives notice, AMSA does not believe
that a notice related to the expiration of storage-in-transit should be
allowed to unduly extend the SIT period. AMSA states shippers are
advised at the time their goods are placed in storage that the SIT
storage period is 90 days and if a longer period
[[Page 35084]]
applies by virtue of a particular carrier's tariff, the shipper is so
advised.
Response to Comments
In the interim final rule, FMCSA has added to paragraph (d) that
notification can be made by facsimile, overnight courier, e-mail, or
certified mail return receipt. All of these methods can confirm
delivery notification to the shipper. We cannot adopt the AGCT's
comment about the shipper's right to bring an action within a State's
statutory limitation period. The Federal statute takes precedence for
interstate moves. Also, FMCSA cannot add a new requirement that would
impose on carriers a potential additional 9 days of liability when it
has failed to give the 10 day notification under paragraph (c). The
rule, as adopted, imposes liability on a carrier for an indefinite
period if it does not give notice and ensures the shipper of at least
24 hours notice that a carrier liability for goods in storage will end.
Section 375.701 May I Provide for a Release of Liability on My Delivery
Receipt?
NACAA supports the requirement that movers must not include in
their paperwork a release from liability for damages, but believes
permitting carriers to include the ``statement the property was
received in apparent good condition except as noted in the shipping
documents'' is not justified and can lead to serious shipper harm. It
suggests that proposed Sec. 375.701(b) be removed. It also proposes
requiring check boxes with statements such as ``I have not had an
opportunity to open all boxes to verify the condition of their contents
or determine if anything is missing.'' It believes the rules should
mandate inclusion of a statement that the ``mover remains liable for
all losses suffered by shipper'' with an explanation of the procedure
and time limits for making a claim.
The AGCT recommends amending this section to make explicit that the
``apparent good condition'' language is not binding and the rules
should not allow a carrier to include a statement that the property was
received in good condition unless otherwise noted. It asserts that the
shipper does not have the time to inspect all goods as the carrier
unloads them. This is especially true for any items that are boxed and
unavailable for inspection at the time of delivery. It believes the
regulation creates a barrier to the shipper's ability to successfully
assert damage claims against the carrier.
AMSA argues that paragraph (a) makes it clear that any carrier
statement attempting to release it from liability is not permitted. The
statement NACAA objects to is a general acknowledgment indicating that
the services ordered have been accomplished and the shipment has been
delivered in ``apparent'' good condition. The shipper is only expected
to note conspicuous loss or damage at the time of delivery. The
presumption of ``apparent'' good condition is routinely rebutted by
shippers after they have had an opportunity to unpack and perform a
more thorough inspection.
Response to Comments
FMCSA agrees with AMSA's comments on this section and believes no
changes are necessary.
Section 375.703 What Is the Maximum Collect-on-Delivery Amount I May
Demand at the Time of Delivery?
The AGCT recommends requiring carriers to relinquish possession of
the shipment in an amount substantially less than 100 percent of the
estimate.
AMSA comments that the maximum COD amount that may be collected on
a non-binding estimate shipment is 110 percent of the estimated amount.
It states that this provision should be revised to mirror its earlier
suggested change in Sec. 375.403(a)(7), to provide that the carrier
may also require full payment for additional services requested or
required by the shipper that do not appear on the estimate and were
performed by the mover en-route or at destination. The proposed
subsection would read as follows:
(b) On a non-binding estimate, the maximum amount is 110 percent
of the non-binding estimate of charges, except that full payment may
be collected at the time of delivery for any added additional
services that were performed en-route or at destination which were
necessary to complete the transportation and do not appear on your
non-binding estimate. You may specify the form of payment acceptable
to you.
Response to Comments
We have not made the changes to this section suggested by AMSA
since we are providing in Sec. 375.403(a)(7) that the carrier may not
require full payment for additional services required by the shipper
that do not appear on the estimate and were performed by the mover en-
route or at destination. We believe that all shipments based on non-
binding estimates should be released to the shipper for no more than
110 percent of the original estimate and the remainder billed after 30
days.
Section 375.705 If a Shipment Is Transported on More Than One Vehicle,
What Charges May I Collect at Delivery?
The AGCT requested the rules should not permit demand for payment
until the entire shipment is delivered. Shipments are not split for the
shipper's benefit, but only for the convenience of the carrier.
Shippers should only be required to tender payment upon the carrier
delivering the entire shipment.
AMSA comments that the proposed section is patterned after the
existing regulation and, on split delivery shipments, it would
authorize carriers to defer collection of transportation charges until
final delivery or collection of a pro-rata portion of those charges
based upon the quantity of goods included in the first delivery.
AMSA argues the AGCT also ignored the requirements of 49 U.S.C.
13707, that provides that carriers must not relinquish possession of
goods until transportation charges are paid. Thus, collection of a pro-
rata portion of transportation charges equal to the quantity of goods
delivered is required by statute.
From an operational standpoint, AMSA alleges, industry data
indicates that less than 2 percent of the shipments transported in 1994
moved in two or more vans. This percentage is nearly equal to the
number of shipments (2 percent) that weighed more than 18,000 to 20,000
pounds, the normal capacity of a moving van, and required the service
of two or more vans. AMSA stated this data came from the latest year
for which such data was available from the AMSA Continuing Traffic
Study, though AMSA did not submit the study as part of its comments.
Therefore, AMSA contends that, contrary to the AGCT's position, most
shipments that involve split deliveries are not the result of carrier
convenience. They are dictated by operational requirements.
Response to Comments
FMCSA agrees with the AMSA comments on this section and has made no
changes to the proposed rule.
Section 375.707 If a Shipment Is Partially Lost or Destroyed, What
Charges May I Collect at Delivery?
The AGCT comments that it is unimaginable that a carrier can lose
or destroy part of a shipment and yet demand full payment before being
obligated to relinquish possession of the remainder of the shipment. It
believes this provision is abhorrent and strongly anti-shipper. The
proposed regulation is silent as to when the carrier must refund
[[Page 35085]]
the amount of the lost or destroyed shipment to the shipper. The AGCT
argues the carrier should be forced to relinquish possession of a
shipment and only bill the shipper for amounts due and owing 30 days
after delivering the shipment to the shipper.
AMSA comments that as proposed, in the event of partial loss or
destruction of a shipment, the mover must determine, at its own
expense, the portion of the shipment that was delivered intact. It
recommends that the wording of this provision be revised for clarity to
avoid confusion concerning the basis for refunding charges that were
applicable to lost or destroyed portions of shipments, as follows:
(b)(4) You must determine, at your own expense, the proportion
of the shipment, based on actual or constructive weight, not lost or
destroyed in transit.
AMSA argues that the AGCT's comments evoke the same degree of
incredulity that the AGCT professes regarding the proposed rule. AMSA
argues that carriers routinely process claims for loss or damage, the
sum of which includes a portion of the transportation charge related to
lost goods. It is difficult to understand the rationale that would deny
payment on a 10,000 pound shipment if, for example, cartons weighing
500 pounds were not tendered at the time of delivery. In such a
situation, the carrier is liable for the value of the lost goods and a
pro-rata portion of the transportation charges. As AMSA had commented
previously, the ICCTA requires that carriers ``* * * shall give up
possession at the destination of the property transported by it only
when payment for the transportation or service is made.''
Response to Comments
FMCSA agrees with the AMSA comments on this section and has
modified paragraph (b)(4) in the interim final rule accordingly.
Section 375.709 If a Shipment Is Totally Lost or Destroyed, What
Charges May I Collect at Delivery?
The AGCT comments that carriers should be required to pay shippers
the declared value of a lost or destroyed shipment on or before the
last day of the contractually agreed on delivery date, less the
specific valuation charge.
AMSA comments that under this section as proposed, movers will not
be entitled to collect or require shippers to pay freight charges
(including charges for accessorial or terminal services) when a
shipment is totally lost or destroyed in transit. The provisions of
paragraph (a)(2) appear to be in conflict by providing that ``you may
apply paragraph (a) of this section only to the transportation of
household goods and not to charges for other services the individual
shipper ordered.'' AMSA is unclear as to the difference between the
prohibited ``accessorial services'' charges referred to in paragraph
(a) and the permitted ``other services'' charges referred to in
paragraph (a)(2). AMSA recommends that paragraph (a)(2) be deleted to
avoid confusion concerning the meaning of this section.
AMSA states that the settlement of claims for loss or damage does
not fall into the simple scenario presented by the AGCT. All such
claims must be substantiated. If a claimant declared a shipment value
of $100,000, that does not automatically entitle the claimant to that
amount in the event of a total loss. If the goods are actually valued
at $75,000 and the claimant can substantiate that amount, the carrier
will honor a claim for the same amount. 49 U.S.C. 14706 imposes
liability ``* * * for the actual loss or injury to the property * * *''
The regulations require that claims for loss or damage be submitted, in
writing in accordance with the requirements of 49 CFR part 370, and
that they, inter alia, include a ``certification of values [and]
depreciation reflected thereon.'' 49 CFR 370.7(b). Obviously, the
processing and settlement of claims for loss or damage by carriers must
follow the explicit requirements of the regulations.
Response to Comments
FMCSA agrees with AMSA's comments for this section and has changed
the interim final rule accordingly.
Section 375.801 What Types of Charges Apply to Subpart H?
The AGCT again asserts the rules should require carriers to
relinquish possession of shipments in an amount substantially less than
100 percent of the estimate.
Response to Comments
FMCSA does not agree with the AGCT comments. We believe that all
binding estimates should be released to the shipper for no more than
100 percent of the original estimate. Sections 375.801-375.807 do not
apply to non-binding estimates.
Section 375.805 If I Am Forced To Relinquish a Collect-on-Delivery
Shipment Before the Payment of ALL Charges, How Do I Collect the
Balance?
The AGCT comments that carriers should not be allowed to present
freight or expense bills before the expiration of a 30-day period after
delivery.
AMSA comments that in order to collect the balance of charges due
on collect-on-delivery shipments, proposed Sec. 375.805 would require
carriers to present the freight bill within 7 days from the date the
shipment was delivered at destination. Such a requirement is
unreasonably short and unrealistic. Typically, a freight bill cannot be
prepared until all shipment paperwork is received from the delivering
driver. It is not uncommon for this process to consume most of the
proposed 7-day period. A 7-day requirement is also inconsistent with
the 15-day requirement contained in proposed Sec. 375.807, and there
is no justification for the two different time periods. It therefore
recommends that Sec. 375.805 be revised to read:
On ``collect-on-delivery'' shipments, you must present your
freight bill for all transportation charges as provided in Sec.
375.807(a).
Response to Comments
FMCSA agrees with AMSA's comment and has changed the rule text to
be 15 days as required by Sec. 375.807.
Section 375.807 What Actions May I Take To Collect the Charges Upon My
Freight Bill?
The AGCT comments that shippers should not be automatically
subjected to a one percent service charge by the operation of a
regulation and believes the FMCSA should consider imposing a one
percent ceiling on any service charge imposed by the carrier.
AMSA comments that as proposed, individual shippers will be
assessed a service charge equal to one percent of the amount of the
freight bill, subject to a $20 minimum charge, for extension of the
normal credit period. AMSA believes this wording should be clarified to
indicate that the one-percent fee applies in 30-day increments, rather
than once for the entire extended credit period. For example, if the
bill remains unpaid for 60 additional days following the initial 30-day
period (for a total of 90 days), the one percent service charge would
be applied three times, once for each 30-day extension or fraction
thereof.
AMSA believes the AGCT suggestion that the regulation should limit
to one percent any service charge imposed by carriers is an
unreasonable request. AMSA asserts the cost of credit and capital and
the cost to carriers of carrying delinquent accounts does not equate to
a flat one percent of an outstanding amount.
[[Page 35086]]
Response to Comments
FMCSA agrees with AMSA's comments and has modified paragraph (c)(2)
in the interim final rule to state the service charge will be assessed
for each 30-day extension of the credit period during which the charges
go unpaid.
Section 375.901 What Is An Annual Arbitration Report?
We discussed the comments concerning the arbitration report under
Sec. 375.211 in our discussion of the arbitration program as a whole.
As we have decided to not require such a report, we have removed
proposed Sec. Sec. 375.901-375.907.
Section 375.1001 What Penalties Do We Impose for Violations of This
Part? (Section 375.901 in Interim Final Rule)
NACAA supports movers being subject to statutory penalties for
failure to comply with these regulations. In addition to these
penalties, NACAA proposes that carriers be made subject to actions
brought pursuant to State unfair or deceptive trade practices laws by
adding the following language to this section:
The regulations are supplementary law; that is, the remedies
provided herein shall be cumulative and supplementary to all other
remedies otherwise provided by Federal, State and local law.
The OCC requests this section include the following language. ``Not
withstanding the above civil penalties, nothing in this Section shall
deprive any holder of a receipt of bill of lading any remedy or right
of action under existing law. Where litigation is pursued under other
existing rights, the prevailing party shall be allowed attorney fees,
trial preparation costs, and court costs.'' The OCC believes its
proposed language should also be paraphrased in YRRWYM on the front
page. It believes that shippers should be able to choose the choice of
forum in the State of shipping or destination and that a list of State
agencies that take complaints concerning household goods moves should
be included.
AMSA comments that the NPRM attempted to explain and/or define the
penalties, civil and criminal, arising from violations of the proposed
regulations. AMSA believes this to be inadvisable. AMSA notes that 49
U.S.C. Chapter 149 consists of 14 specific laws that require 36 pages
of written text (sections and related statutory and case notes)
defining the scope of these penalty provisions. An attempt to restate
these provisions in a short-hand version is likely to lead to
misinterpretations and debate over Congressional intent. AMSA believes
the statutory penalty provisions speak for themselves and, if invoked,
they will prevail and not the proposed regulations. Therefore, AMSA
recommends that all but the first two sentences of proposed Sec.
375.1001 be eliminated.
Response to Comments
FMCSA agrees with AMSA's comments on this section and has removed
all but the first two sentences of Sec. 375.1001 (renumbered as
375.901 in the interim final rule). Regarding NACAA's comments, the
Carmack amendment, now codified at 49 U.S.C. 14706, imposes a uniform
regime of carrier liability for interstate shipments of property
designed to eliminate the uncertainty resulting from potentially
conflicting State laws. Federal and State courts have consistently held
that Carmack preempts (or supercedes) a broad range of State consumer
protection laws potentially applicable to interstate household goods
carriers, regardless of whether these laws are consistent with Carmack.
The language proposed by NACAA is inconsistent with prevailing case law
and beyond the authority of FMCSA to impose in this rulemaking
proceeding.
We agree with OCC's recommendation that this section include the
following language: ``Notwithstanding the above civil penalty, nothing
in this section shall deprive any holder of a receipt of a bill of
lading, any remedy or right of action under existing law.''
Appendix A Your Rights and Responsibilities When You Move
FMCSA has modified appendix A to be consistent with the interim
final rules as modified by the above comments.
Order of the Final Regulations
The following table specifies the new section of each rule, the old
section (if any) where the rule originated, and the title of the new
section.
Part 375.--Transportation of Household Goods in Interstate Commerce
----------------------------------------------------------------------------------------------------------------
New section Old section Title of new section
----------------------------------------------------------------------------------------------------------------
SUBPART A--GENERAL REQUIREMENTS
----------------------------------------------------------------------------------------------------------------
375.101.............................. 375.1(a)............... Who must follow these regulations?
375.103.............................. 375.1(b)............... What are the definitions of terms used in this
part?
375.105.............................. None................... What are the information collection requirements
of this part?
--------------------------------------
SUBPART B--BEFORE OFFERING SERVICES TO CUSTOMERS
----------------------------------------------------------------------------------------------------------------
Liability Considerations
----------------------------------------------------------------------------------------------------------------
375.201.............................. 375.12................. What is my normal liability for loss or damage
when I accept goods from an individual shipper?
375.203.............................. 375.12................. What actions of an individual shipper may limit
or reduce my normal liability?
--------------------------------------
General Responsibilities
----------------------------------------------------------------------------------------------------------------
375.205.............................. 375.14................. May I have agents?
375.207.............................. 375.17................. What items must be in my advertisements?
375.209.............................. 375.13................. How must I handle complaints and inquiries?
375.211.............................. None................... Must I have an arbitration program?
375.213.............................. 375.2.................. What information must I provide to a prospective
individual shipper?
--------------------------------------
Collecting Transportation Charges
----------------------------------------------------------------------------------------------------------------
375.215.............................. 373, subpart A......... How must I collect charges?
[[Page 35087]]
375.217.............................. 377, subpart A......... May I collect charges upon delivery?
375.219.............................. 377.215(a) and (b)..... May I extend credit to shippers?
375.221.............................. 375.19................. May I use a charge card plan for payments?
--------------------------------------
SUBPART C--SERVICE OPTIONS PROVIDED
----------------------------------------------------------------------------------------------------------------
375.301.............................. None................... What service options may I provide?
375.303.............................. 375.11................. If I sell liability insurance coverage, what
must I do?
--------------------------------------
SUBPART D--ESTIMATING CHARGES
----------------------------------------------------------------------------------------------------------------
375.401.............................. 375.3.................. Must I estimate charges?
375.403.............................. 375.3.................. How must I provide a binding estimate?
375.405.............................. 375.3.................. How must I provide a non-binding estimate?
375.407.............................. 375.3.................. Under what circumstances must I relinquish
possession of a collect-on-delivery shipment
transported under a non-binding estimate?
375.409.............................. None................... May household goods brokers provide estimates?
--------------------------------------
SUBPART E--PICK-UP OF SHIPMENTS OF HOUSEHOLD GOODS BEFORE LOADING
----------------------------------------------------------------------------------------------------------------
375.501.............................. 375.5.................. Must I write up an order for service?
375.503.............................. None................... Must I write up an inventory?
375.505.............................. 375.6.................. Must I write up a bill of lading?
--------------------------------------
Weighing the Shipment
----------------------------------------------------------------------------------------------------------------
375.507.............................. 375.7.................. Must I determine the weight of a shipment?
375.509.............................. 375.7.................. How must I determine the weight of a shipment?
375.511.............................. 375.7.................. May I use an alternative method for shipments
weighing 3,000 pounds or less?
375.513.............................. 375.7.................. Must I give the individual shipper an
opportunity to observe the weighing?
375.515.............................. 375.7.................. May an individual shipper waive his/her right to
observe each weighing?
375.517.............................. 375.7.................. May an individual shipper demand re-weighing?
375.519.............................. 375.7.................. Must I obtain weight tickets?
375.521.............................. 375.7.................. What must I do if an individual shipper wants to
know the actual weight or charges for a
shipment before I tender delivery?
--------------------------------------
SUBPART F--TRANSPORTATION OF SHIPMENTS
----------------------------------------------------------------------------------------------------------------
375.601.............................. 375.8.................. Must I transport the shipment in a timely
manner?
375.603.............................. 375.8.................. When must I tender a shipment for delivery?
375.605.............................. 375.8.................. How must I notify an individual shipper of any
service delays?
375.607.............................. 375.8.................. What must I do if I am able to tender a shipment
for final delivery more than 24 hours before a
specified date or period of time?
375.609.............................. 375.12(c).............. What must I do for shippers who store household
goods in transit?
--------------------------------------
SUBPART G--DELIVERY OF SHIPMENTS
----------------------------------------------------------------------------------------------------------------
375.701.............................. 375.10................. May I provide for a release of liability on my
delivery receipt?
375.703.............................. 375.3(d)............... What is the maximum collect-on-delivery amount I
may demand at the time of delivery?
375.705.............................. 375.16................. If a shipment is transported on more than one
vehicle, what charges may I collect at
delivery?
375.707.............................. 375.15................. If a shipment is partially lost or destroyed,
what charges may I collect at delivery?
375.709.............................. 375.15................. If a shipment is totally lost or destroyed, what
charges may I collect at delivery?
--------------------------------------
SUBPART H--COLLECTION OF ACTUAL CHARGES
----------------------------------------------------------------------------------------------------------------
375.801.............................. None................... What types of charges apply to subpart H?
375.803.............................. 377.205................ How must I present my freight or expense bill?
375.805.............................. 375.3(d)............... If I was forced to relinquish a collect-on-
delivery shipment before the payment of ALL
charges, how do I collect the balance?
375.807.............................. 377.215 (c)............ What actions may I take to collect the charges
upon my freight bill?
--------------------------------------
SUBPART I--PENALTIES
----------------------------------------------------------------------------------------------------------------
375.901.............................. None................... What penalties do we impose for violations of
this part?
--------------------------------------
APPENDIX A
----------------------------------------------------------------------------------------------------------------
Part 375, Appendix A................. Part 375 Form: Office Your Rights and Responsibilities When You Move.
of Compliance and
Enforcement (OCE)-100.
----------------------------------------------------------------------------------------------------------------
[[Page 35088]]
Compliance and Effective Dates
The agency is specifying when motor carriers and drivers must
comply with this interim final rule. The effective date cited in the
DATES heading at the top of this document is the date that this interim
final rule's amendments affect the current Code of Federal Regulations
published by the Office of the Federal Register. Motor carriers and
drivers transporting household goods may not begin to comply with this
interim final rule on that date.
The compliance date is the date that motor carriers and drivers
must begin to comply with this interim final rule. Motor carriers,
drivers, and the FMCSA must do many necessary things before the rules
can be enforced. The FMCSA must update motor carrier information,
compliance, and enforcement computer systems and manuals. The FMCSA has
eight computer software packages where it must find the correct code,
write new code, test the new software, and distribute it to its
division offices.
The agency must develop training, distribute training materials,
and ensure training materials are read, taught, and understood by the
FMCSA's inspectors, investigators, and auditors. The agency also plans
to provide training and presentations to the public about the new
rules.
Motor carriers must develop training or use FMCSA's training
materials, distribute training materials, and ensure training materials
are read, taught, and understood by the drivers engaged in interstate
commerce who transport household goods. The FMCSA cannot do its part,
and cannot expect motor carriers to do their part, within 90 days after
today.
The agency believes a compliance date near the end of the ``off-
season'' will be the least burdensome to all carriers and enforcement
officials. Most affected carriers subject to this interim final rule
have fewer household goods shipments between October and March and most
affected carriers would suffer less disruption to their operations if
the rule took effect near the beginning of a new moving season (April
through September). Therefore, the agency is providing a compliance
date when all carriers, drivers, and enforcement officials will switch
from the current rule to the new rule: Monday, March 1, 2004.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined that this action is a significant regulatory
action within the meaning of Executive Order 12866 and the Department
of Transportation regulatory policies and procedures (44 FR 11034,
February 26, 1979) because there is substantial public interest. It is
anticipated that the economic impact of this rulemaking will be
minimal.
The rules affect a broad segment of the public. In addition, the
agency received comments to the NPRM from the California, Colorado,
Idaho, Michigan, New Hampshire, Oregon, and Pennsylvania Departments of
Agriculture, the elected Attorney Generals from 26 States, and numerous
consumer groups.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), as amended
by the Small Business Regulatory Enforcement and Fairness Act (Pub. L.
104-121), requires federal agencies to analyze the impact of
rulemakings on small entities, unless the Agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
The changes being made to the existing rule by FMCSA do not impose
a significant economic impact on a substantial number of small
entities. The original rule issued by the ICC imposed paperwork
requirements that would take 785 hours for each entity. Today's IFR
increases that burden by 458 hours; the new total of the burden hours
is 1,243 hours. The total is being added to FMCSA's information
collection budget, since the original amount was never ``transferred''
from the ICC.
The interim final rule bases this estimate of 1,243 hours upon the
estimated costs identified to create records, duplicate records, store
the original and duplicated copies of records, and practice inventory
control for the records.
The information required for preparing these documents is the type
of information already developed by such entities in the normal course
of conducting a household goods transportation business. The time
necessary to compile the incremental data for the documents required in
these regulations should be minimal and would vary proportionately with
the number of shipments transported by the carrier.
FMCSA did not propose any different requirements or timetables for
small entities. As noted above, we do not believe these requirements
will be onerous, with many carriers already having to comply with these
requirements. Furthermore, FMCSA has eliminated existing performance
reporting requirements for both large and small carriers.
As explained above, FMCSA cannot exempt small carriers from these
proposals without seriously diminishing the agency's ability to ensure
the protection of consumers. Exempting them could have the same impact
as not issuing (or enforcing) these proposals. Therefore, FMCSA
certifies that this interim final rule will not have a significant
impact on a substantial number of small entities.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999 (64
FR 43255, August 10, 1999). State Attorneys General submitted comments
to the May 2, 1998 NPRM, which were considered in developing this
interim final regulation. The FMCSA has addressed the concerns of the
Attorneys General in the interim final rule. The FMCSA certifies that
this interim final rule has federalism implications because it directly
impacts the distribution of power and responsibilities among the
various levels of government.
Federalism Summary Impact Statement
The FMCSA Position Supporting the Need To Issue This Regulation
The State Attorneys General generally believe they hold authority
to enforce laws and regulations governing the interstate transportation
of household goods and want FMCSA to acknowledge their role. However,
the interstate transportation of household goods involves issues that
are national in scope that have been regulated exclusively by the
Federal government for many years. Regulations implementing the
Household Goods Transportation Act of 1980 were promulgated by the
Interstate Commerce Commission (ICC) in 1981 and were subsequently
transferred to DOT by the ICC Termination Act of 1995 where Congress,
in 49 U.S.C. 14104, conferred authority on the Secretary of
Transportation to `issue regulations protecting individual shippers.'
The Secretary subsequently delegated this authority to FMCSA under 49
CFR 1.73(a)(6). Thus, the Carmack Amendment, now codified at 49 U.S.C.
14706, imposes a uniform regime of carrier liability for interstate
shipments of property designed to eliminate the uncertainty resulting
from potentially conflicting State laws. Federal and State courts have
consistently held that
[[Page 35089]]
Carmack preempts a broad range of State consumer protection laws
potentially applicable to interstate household goods carriers. As was
the case with the former ICC regulation amended by today's interim
final rule, under current case law this rule preempts all State
regulations that purport to regulate the interstate transportation of
household goods subject to Federal jurisdiction.
AMSA commented that the NPRM's conclusion that this rule is not
intended to preempt any State law or regulation was incorrect and is
likely to promote uncertainty and potential conflicts with States. AMSA
wrote ``In promulgating these regulations FHWA has expressly preempted
application of any State law that would impact the services required to
perform interstate transportation of household goods. States, for
example, may not regulate the manner in which household goods carriers
are required by FHWA to execute orders for service nor may they enforce
any State regulation that would affect any other aspect of the
interstate moving service performed by household goods carriers
regulated by FHWA. See, e.g., Fidelity Federal S. Sr L. Assn. v. de la
Cuesta, 458 U.S. 141, 73 L.Ed.Zd 664 (1982) (Even where Congress has
not completely displaced State regulation in a specific area, State law
is nullified to the extent that it actually conflicts with Federal law.
Federal regulations have no less pre-emptive effect than Federal
statutes.) FHWA authority to issue the proposed regulations is without
question. As the NPRM notes, in enacting section 14104 of the
Termination Act, the enabling statute in this proceeding-Congress
conferred authority on the Secretary to `issue regulations protecting
individual shippers.' That is precisely what the Secretary proposes and
his action in doing so preempts all State regulations that would
purport to regulate the same activities. For these reasons, the cited
sentence should be removed or clarified in the final decision in this
proceeding. In a similar vein, it is appropriate at this point to
address certain comments of NACAA. NACAA urges that the proposed
regulations should announce that they are supplementary law only and
that violations will also subject movers to remedies provided by other
Federal, State and local laws, such as State deceptive trade practices
laws. (Comments, p. 7). This suggestion reflects a fundamental
misconception of the Supremacy Clause, U.S. Constitution, Art. VI,
clause 2, and Federal preemption. There is not the slightest suggestion
in the law or its precedent that Congress ever intended this explicit
and comprehensive regulatory scheme to be supplemental to or superseded
by any State law or regulation. Congress could not have been clearer in
expressing its intent to occupy the field of interstate household goods
transportation regulation. AMSA asserts the NACAA's contention is
flatly wrong.'' The FMCSA agrees that AMSA has correctly stated current
case law on the preemption issue.
Prior Consultations With State and Local Officials
As the AMSA pointed out, the NPRM's conclusion that this rule is
not intended to preempt any State law or regulation was incorrect.
Thus, the requirement in section 6(c) to consult ``with State and local
officials early in the process of developing the proposed regulation''
in accordance with OMB guidance to send letters to State and local
officials or their regional or national representative organizations,
such as the National Association of Governors, did not occur. The
agency did receive comments to the docket from State and local
officials.
Summary of the Nature of State and Local Officials' Concerns
State officials recommended that the rules incorporate additional
consumer protection provisions, including: (1) More comprehensive
disclosure requirements, particularly with respect to insurance and
carrier liability; (2) stronger arbitration requirements; (3) uniform
rules governing cash-on-delivery service, including requiring movers to
relinquish possession of a shipment upon payment of an amount
substantially less than the amount of the estimate; (4) requiring
movers to offer guaranteed delivery prices if requested by the shipper;
(5) restricting billing for additional services not contained in the
estimate; (6) establishing a three-day grace period allowing a shipper
to rescind an order for service without penalty; (7) permitting the
shipper to deduct penalties for late deliveries from the transportation
charges; (8) relaxing limitations on a shipper's right to file loss and
damage claims, including claims for loss and damage occurring during
storage-in-transit; and (9) prohibiting demands for payment until the
entire shipment is delivered.
Statement of the Extent To Which the FMCSA Has Addressed the Concerns
of State and Local Officials
In response to these comments, FMCSA modified the proposed rules
by: (1) Revising the consumer information pamphlet that movers must
give shippers to include guidance regarding their right to decline
arbitration; (2) clarifying carrier liability disclosure requirements;
(3) requiring movers to disclose the identity of subcontractors used to
handle the move; (4) requiring movers to relinquish delivery and defer
demanding payment for charges not in the estimate which the mover could
have reasonably determined at the time of pick-up; and (5) mandating a
three-day grace period for shippers to cancel orders for service
without penalty.
Conclusion
The FMCSA submitted State and local official comments to the docket
and this federalism summary impact statement to the Director of the
Office of Management and Budget.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a final rule likely to result in a Federal
mandate requiring expenditures by a State, local, or tribal government
or by the private sector of $100 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. FMCSA has
determined that the changes in this interim final rule will not have an
impact of $100 million or more in any one year.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. The majority of
the information collection (IC) requirements in this IFR are not new.
Yet, the FMCSA has determined, for reasons set forth below, that the
information collection requirements in this IFR would technically
constitute a new collection of information undertaking, thus needing a
new OMB approval and control number.
The FMCSA seeks approval of the collection of information
requirements in this IFR to generate, maintain, retain, disclose, and
provide information to, or for, the agency under 49 CFR part 375. The
information collected will assist individual household goods shippers
in their commercial dealings with interstate household goods carriers,
thereby providing a desirable consumer
[[Page 35090]]
protection service. The collection of information would be used by
prospective household goods shippers to make informed decisions about
contracts and services to be ordered, executed, and settled within the
interstate household goods carrier industry. These information
collection items were required by the former ICC regulations. When
these items transferred from the ICC to the FMCSA, however, no OMB
control number was assigned to cover this information collection
transfer. It is therefore necessary to calculate the old information
collection burden hours for these items approved under the ICC rules
versus the new burden generated by this IFR. The only information
collection items changing from the former ICC's rules regarding
household goods transportation are the addition of an arbitration
program summary, written non-binding estimates and inventory, and the
elimination of the annual performance reporting requirement.
Assumptions used for calculations in this PRA section include the
following: (1) There are currently approximately 4,000 active household
goods carriers--up from the 2,000 estimated in the 1998 NPRM; (2) an
estimated 75 new household goods carriers will start-up business each
year; (3) over the next 3 years, two large van lines will start-up
business; and (4) the arbitration report that was proposed at NPRM
stage will not be required.
The following table summarizes the information collection burden
hours of this IFR by setting forth the appropriate section of part 375
that is affected. The total annual burden hour estimate in this IFR is
4,370,037 (the estimate at NPRM stage was 4,811,127 burden hours, a
difference of 441,090 burden hours). The chart also shows which
information collection activities were required under the former-ICC
regulations and those which are new, set forth for the first time in
this IFR. A detailed analysis of the burden hours can be found in the
OMB Supporting Statement that corresponds with this IFR. The Supporting
Statement and its attachments are in the docket associated with this
rule (Docket No. FMCSA-97-2979).
----------------------------------------------------------------------------------------------------------------
Proposed
Type of burden section Hourly burden New burden?
----------------------------------------------------------------------------------------------------------------
Agency Agreements............................. 375.205 19 No
Minimum Advertising Information Soliciting 375.207 684 No
Prospective Individual Shippers.
Complaint and Inquiry Handling................ 375.209 500,000 No
Arbitration Program Summary................... 375.211 8,000 Yes
Your Rights and Responsibilities When You Move 375.213 8,334 No
Booklet.
Selling Insurance Policies.................... 375.303 100,000 No
Estimates--Binding............................ 375.401 1,836,000 No
Estimates--Non-binding........................ 375.401 1,224,000 Yes
Orders for Service............................ 375.501 300,000 No
Inventory..................................... 375.503 0 (1) Yes
Bills of Lading............................... 375.505 300,000 No
Volume to Weight Conversions.................. 375.507 4,000 No
Weight Tickets................................ 375.519 42,000 No
Notifications of Reasonable Dispatch Service 375.605 16,000 No
Delays.
Delivery More Than 24 Hrs. Ahead of Time...... 375.607 1,000 No
Notification of Storage-in-Transit Liability 375.609 30,000 No
Assignments.
-----------------
``Old'' Burden Hours...................... .............. .............. 3,138,037
``New'' Burden Hours...................... .............. .............. 1,232,000
=================
Total Burden Hours for IC............. .............. 4,370,037 ................................
----------------------------------------------------------------------------------------------------------------
\1\ Making inventories is a usual and customary moving industry practice that the FMCSA is adopting at the
suggestion of the NACAA and the AMSA. The PRA regulations at 5 CFR 1320.3(b)(2) allow the FMCSA to calculate
no burden when the agency demonstrates that the activity needed to comply is usual and customary. The
supporting statement in the docket demonstrates that moving industry drivers usually and customarily write
inventories before loading shipments, although drivers have not been required by law to do so before today's
Federal Register.
We particularly request your comments on whether the collection of
information is necessary for the FMCSA to meet the goal of 49 CFR part
375 to protect consumers, including: (1) Whether the information is
useful to this goal; (2) the accuracy of the estimate of the burden of
the information collection; (3) ways to enhance the quality, utility
and clarity of the information collected; and (4) ways to minimize the
burden of the collection of information on respondents, including the
use of automated collection techniques or other forms of information
technology.
You may submit comments on the information collection burden
addressed by this interim final rule to the Office of Management and
Budget (OMB). The OMB must receive your comments by July 11, 2003. You
must mail or hand deliver your comments to: Attention: Desk Officer for
the Department of Transportation, Docket Library, Office of Information
and Regulatory Affairs, Office of Management and Budget, Room 10102,
725 17th Street, NW., Washington, DC 20503.
National Environmental Policy Act
The agency has analyzed this rulemaking for purposes of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action does not have any effect on the quality
of the environment.
Executive Order 12630 (Taking of Private Property)
This final rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
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.
[[Page 35091]]
Executive Order 13211 (Energy Supply, Distribution, or Use)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of section 4(b) of the Executive Order because as a
procedural action it is not economically significant and will not have
a significant adverse effect on the supply, distribution, or use of
energy.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
List of Subjects
49 CFR Part 375
Advertising, Arbitration, Consumer protection, Freight, Highways
and roads, Insurance, Motor carriers, Moving of household goods,
Reporting and recordkeeping requirements
49 CFR Part 377
Credit, Freight forwarders, Highways and roads, Motor carriers.
0
For the reasons set out in the preamble, FMCSA amends 49 CFR parts 375
and 377 as set forth below:
0
1. Part 375 is revised to read as follows:
PART 375--TRANSPORTATION OF HOUSEHOLD GOODS IN INTERSTATE COMMERCE;
CONSUMER PROTECTION REGULATIONS
Subpart A--General Requirements
Sec.
375.101 Who must follow these regulations?
375.103 What are the definitions of terms used in this part?
375.105 What are the information collection requirements of this
part?
Subpart B--Before Offering Services to My Customers
Liability Considerations
375.201 What is my normal liability for loss and damage when I
accept goods from an individual shipper?
375.203 What actions of an individual shipper may limit or reduce my
normal liability?
General Responsibilities
375.205 May I have agents?
375.207 What items must be in my advertisements?
375.209 How must I handle complaints and inquiries?
375.211 Must I have an arbitration program?
375.213 What information must I provide to a prospective individual
shipper?
Collecting Transportation Charges
375.215 How must I collect charges?
375.217 May I collect charges upon delivery?
375.219 May I extend credit to shippers?
375.221 May I use a charge or credit card plan for payments?
Subpart C--Service Options Provided
375.301 What service options may I provide?
375.303 If I sell liability insurance coverage, what must I do?
Subpart D--Estimating Charges
375.401 Must I estimate charges?
375.403 How must I provide a binding estimate?
375.405 How must I provide a non-binding estimate?
375.407 Under what circumstances must I relinquish possession of a
collect-on-delivery shipment transported under a non-binding
estimate?
375.409 May household goods brokers provide estimates?
Subpart E--Pick Up of Shipments of Household Goods
Before Loading
375.501 Must I write up an order for service?
375.503 Must I write up an inventory?
375.505 Must I write up a bill of lading?
Weighing the Shipment
375.507 Must I determine the weight of a shipment?
375.509 How must I determine the weight of a shipment?
375.511 May I use an alternative method for shipments weighing 3,000
pounds or less?
375.513 Must I give the individual shipper an opportunity to observe
the weighing?
375.515 May an individual shipper waive his/her right to observe
each weighing?
375.517 May an individual shipper demand re-weighing?
375.519 Must I obtain weight tickets?
375.521 What must I do if an individual shipper wants to know the
actual weight or charges for a shipment before I tender delivery?
Subpart F--Transportation of Shipments
375.601 Must I transport the shipment in a timely manner?
375.603 When must I tender a shipment for delivery?
375.605 How must I notify an individual shipper of any service
delays?
375.607 What must I do if I am able to tender a shipment for final
delivery more than 24 hours before a specified date?
375.609 What must I do for shippers who store household goods in
transit?
Subpart G--Delivery of Shipments
375.701 May I provide for a release of liability on my delivery
receipt?
375.703 What is the maximum collect-on-delivery amount I may demand
at the time of delivery?
375.705 If a shipment is transported on more than one vehicle, what
charges may I collect at delivery?
375.707 If a shipment is partially lost or destroyed, what charges
may I collect at delivery?
375.709 If a shipment is totally lost or destroyed, what charges may
I collect at delivery?
Subpart H--Collection of Charges
375.801 What types of charges apply to subpart H?
375.803 How must I present my freight or expense bill?
375.805 If I am forced to relinquish a collect-on-delivery shipment
before the payment of ALL charges, how do I collect the balance?
375.807 What actions may I take to collect the charges upon my
freight bill?
Subpart I--Penalties
375.901 What penalties do we impose for violations of this part?
Appendix A to Part 375--Your Rights and Responsibilities When You
Move
Authority: 5 U.S.C. 553; 49 U.S.C. 13301, 13704, 13707, 14104,
14706; and 49 CFR 1.73.
Subpart A--General Requirements
Sec. 375.101 Who must follow these regulations?
You, a for-hire motor carrier engaged in the interstate
transportation of household goods, must follow these regulations when
offering your services to individual shippers. You are subject to this
part only when you transport household goods for individual shippers by
motor vehicle in interstate commerce.
Sec. 375.103 What are the definitions of terms used in this part?
Terms used in this part are defined as follows. You may find other
terms used in these regulations defined in 49 U.S.C. 13102. The
definitions contained in this statute control. If terms are used in
this part and the terms are neither defined here nor in 49 U.S.C.
13102, the terms will have the ordinary practical meaning of such
terms.
Advertisement means any communication to the public in connection
with an offer or sale of any interstate household goods transportation
service. This includes written or electronic database listings of your
name, address, and telephone number in an on-line database. This
excludes listings of your name, address, and telephone number in a
telephone directory or similar publication. However, Yellow Pages
advertising is included in the definition.
[[Page 35092]]
Cashier's check means a check that has all four of the following
characteristics:
(1) Drawn on a bank as defined in 12 CFR 229.2.
(2) Signed by an officer or employee of the bank on behalf of the
bank as drawer.
(3) A direct obligation of the bank.
(4) Provided to a customer of the bank or acquired from the bank
for remittance purposes.
Certified scale means any scale inspected and certified by an
authorized scale inspection and licensing authority, and designed for
weighing motor vehicles, including trailers or semi-trailers not
attached to a tractor, or designed as a platform or warehouse type
scale.
Commercial shipper means any person who is named as the consignor
or consignee in a bill of lading contract who is not the owner of the
goods being transported but who assumes the responsibility for payment
of the transportation and other tariff charges for the account of the
beneficial owner of the goods. The beneficial owner of the goods is
normally an employee of the consignor and/or consignee. A freight
forwarder tendering a shipment to a carrier in furtherance of freight
forwarder operations is also a commercial shipper. The Federal
government is a government bill of lading shipper, not a commercial
shipper.
Force majeure means a defense protecting the parties in the event
that a part of the contract cannot be performed due to causes which are
outside the control of the parties and could not be avoided by exercise
of due care.
Government bill of lading shipper means any person whose property
is transported under the terms and conditions of a government bill of
lading issued by any department or agency of the Federal government to
the carrier responsible for the transportation of the shipment.
Household goods, as used in connection with transportation, means
the personal effects or property used, or to be used, in a dwelling,
when part of the equipment or supplies of the dwelling. Transportation
of the household goods must be arranged and paid for by the individual
shipper or by another individual on behalf of the shipper. Household
goods includes property moving from a factory or store if purchased
with the intent to use in a dwelling and transported at the request of
the householder, who also pays the transportation charges.
Individual shipper means any person who is the consignor or
consignee of a household goods shipment identified as such in the bill
of lading contract. The individual shipper owns the goods being
transported and pays the transportation charges.
May means an option. You may do something, but it is not a
requirement.
Must means a legal obligation. You must do something.
Order for service means a document authorizing you to transport an
individual shipper's household goods.
Reasonable dispatch means the performance of transportation on the
dates, or during the period, agreed upon by you and the individual
shipper and shown on the Order For Service/Bill of Lading. For example,
if you deliberately withhold any shipment from delivery after an
individual shipper offers to pay the binding estimate or 110 percent of
a non-binding estimate, you have not transported the goods with
reasonable dispatch. The term ``reasonable dispatch'' excludes
transportation provided under your tariff provisions requiring
guaranteed service dates. You will have the defenses of force majeure,
i.e., superior or irresistible force, as construed by the courts.
Should means a recommendation. We recommend you do something, but
it is not a requirement.
Surface Transportation Board means an agency within the Department
of Transportation. The Surface Transportation Board regulates household
goods carrier tariffs among other responsibilities.
Tariff means an issuance (in whole or in part) containing rates,
rules, regulations, classifications or other provisions related to a
motor carrier's transportation services. The Surface Transportation
Board requires a tariff contain specific items under Sec. 1312.3(a) of
this title. These specific items include an accurate description of the
services offered to the public and the specific applicable rates (or
the basis for calculating the specific applicable rates) and service
terms. A tariff must be arranged in a way that allows for the
determination of the exact rate(s) and service terms applicable to any
given shipment.
We, us, and our means the Federal Motor Carrier Safety
Administration (FMCSA).
You and your means a motor carrier engaged in the interstate
transportation of household goods and its household goods agents.
Sec. 375.105 What are the information collection requirements of this
part?
(a) The information collection requirements of this part have been
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and have been
assigned OMB control number 2126------.
(b) The information collection requirements are found in the
following sections:
Section 375.205, Section 375.207, Section 375.209, Section 375.211,
Section 375.213, Section 375.215, Section 375.217, Section 375.303,
Section 375.401, Section 375.403, Section 375.405, Section 375.409,
Section 375.501, Section 375.503, Section 375.505, Section 375.507,
Section 375.515, Section 375.519, Section 375.521, Section 375.605,
Section 375.607, Section 375.609, Section 375.803, Section 375.805, and
Section 375.807.
Subpart B--Before Offering Services to My Customers
Liability Considerations
Sec. 375.201 What is my normal liability for loss and damage when I
accept goods from an individual shipper?
(a) In general, you are legally liable for loss or damage if it
happens during performance of any transportation of household goods and
all related services identified on your lawful bill of lading.
(b) You are liable for loss of, or damage to, any household goods
to the extent provided in the current Surface Transportation Board's
released rates order. Contact the Surface Transportation Board for a
current copy of the Released Rates of Motor Carrier Shipments of
Household Goods. The rate may be increased annually by the carrier
based on the Department of Commerce's Cost of Living Adjustment.
(c) As required by Sec. 375.303(g), you may have additional
liability if you sell liability insurance and you fail to issue a copy
of the insurance policy or other appropriate evidence of insurance.
(d) You must, in a clear and concise manner, disclose to the
individual shipper the limits of your liability.
Sec. 375.203 What actions of an individual shipper may limit or
reduce my normal liability?
(a) If an individual shipper includes perishable, dangerous, or
hazardous articles in the shipment without your knowledge, you need not
assume liability for those articles or for the loss or damage caused by
their inclusion in the shipment. If the shipper requests that you
accept such articles for
[[Page 35093]]
transportation, you may elect to limit your liability for any loss or
damage by appropriately published tariff provisions.
(b) If an individual shipper agrees to ship household goods
released at a value greater than 60 cents per pound ($1.32 per
kilogram) per article, your liability for loss and damage may be
limited to $100 per pound ($220 per kilogram) per article if the
individual shipper fails to notify you in writing of articles valued at
more than $100 per pound ($220 per kilogram).
(c) If an individual shipper notifies you in writing that an
article valued at greater than $100 per pound ($220 per kilogram) will
be included in the shipment, the shipper will be entitled to full
recovery up to the declared value of the article or articles, not to
exceed the declared value of the entire shipment.
General Responsibilities
Sec. 375.205 May I have agents?
(a) You may have agents provided you comply with paragraphs (b) and
(c) of this section. A household goods agent is defined as either one
of the following two types of agents:
(1) A prime agent provides a transportation service for you or on
your behalf, including the selling of, or arranging for, a
transportation service. You permit or require the agent to provide
services under the terms of an agreement or arrangement with you. A
prime agent does not provide services on an emergency or temporary
basis. A prime agent does not include a household goods broker or
freight forwarder.
(2) An emergency or temporary agent provides origin or destination
services on your behalf, excluding the selling of, or arranging for, a
transportation service. You permit or require the agent to provide such
services under the terms of an agreement or arrangement with you. The
agent performs such services only on an emergency or temporary basis.
(b) If you have agents, you must have written agreements between
you and your prime agents. You and your retained prime agent must sign
the agreements.
(c) Copies of all your prime agent agreements must be in your files
for a period of at least 24 months following the date of termination of
each agreement.
Sec. 375.207 What items must be in my advertisements?
(a) You and your agents must publish and use only truthful,
straightforward, and honest advertisements.
(b) You must include, and you must require each of your agents to
include, in all advertisements for all services (including any
accessorial services incidental to or part of interstate household
goods transportation), the following two elements:
(1) Your name or trade name, as it appears on our document
assigning you a U.S. DOT number, or the name or trade name of the motor
carrier under whose operating authority the advertised service will
originate.
(2) Your U.S. DOT number, assigned by us authorizing you to operate
as a for-hire motor carrier transporting household goods.
(c) Your FMCSA-assigned U.S. DOT number must be displayed only in
the following form in every advertisement: U.S. DOT No. (assigned
number).
Sec. 375.209 How must I handle complaints and inquiries?
(a) You must establish and maintain a procedure for responding to
complaints and inquiries from your individual shippers.
(b) Your procedure must include all four of the following items:
(1) A communications system allowing individual shippers to
communicate with your principal place of business by telephone.
(2) A telephone number.
(3) A clear and concise statement about who must pay for complaint
and inquiry telephone calls.
(4) A written or electronic record system for recording all
inquiries and complaints received from an individual shipper by any
means of communication.
(c) You must produce a clear and concise written description of
your procedure for distribution to individual shippers.
Sec. 375.211 Must I have an arbitration program?
(a) You must have an arbitration program for individual shippers.
You must establish and maintain an arbitration program with the
following eleven minimum elements:
(1) You must design your arbitration program to prevent you from
having any special advantage in any case where the claimant resides or
does business at a place distant from your principal or other place of
business.
(2) Before the household goods are tendered for transport, your
arbitration program must provide notice to the individual shipper of
the availability of neutral arbitration, including all three of the
following items:
(i) A summary of the arbitration procedure.
(ii) Any applicable costs.
(iii) A disclosure of the legal effects of election to use
arbitration.
(3) Upon the individual shipper's request, you must provide
information and forms you consider necessary for initiating an action
to resolve a dispute under arbitration.
(4) You must require each person you authorize to arbitrate to be
independent of the parties to the dispute and capable of resolving such
disputes, and you must ensure the arbitrator is authorized and able to
obtain from you or the individual shipper any material or relevant
information to carry out a fair and expeditious decisionmaking process.
(5) You must not charge the individual shipper more than one-half
of the total cost for instituting the arbitration proceeding against
you. In the arbitrator's decision, the arbitrator may determine which
party must pay the cost or a portion of the cost of the arbitration
proceeding, including the cost of instituting the proceeding.
(6) You must refrain from requiring the individual shipper to agree
to use arbitration before a dispute arises.
(7) Arbitration must be binding for claims of $5,000 or less, if
the individual shipper requests arbitration.
(8) Arbitration must be binding for claims of more than $5,000, if
the individual shipper requests arbitration and the carrier agrees to
it.
(9) If all parties agree, the arbitrator may provide for an oral
presentation of a dispute by a party or representative of a party.
(10) The arbitrator must render a decision within 60 days of
receipt of written notification of the dispute, and a decision by an
arbitrator may include any remedies appropriate under the
circumstances.
(11) The arbitrator may extend the 60-day period for a reasonable
period if you or the individual shipper fail to provide, in a timely
manner, any information the arbitrator reasonably requires to resolve
the dispute.
(b) You must produce and distribute a concise, easy-to-read,
accurate summary of the your arbitration program, including the items
in this section.
Sec. 375.213 What information must I provide to a prospective
individual shipper?
(a) Before you execute an order for service for a shipment of
household goods, you must furnish to your prospective individual
shipper, all five of the following documents:
(1) The contents of appendix A of this part, ``Your Rights and
Responsibilities When You Move.''
[[Page 35094]]
(2) A concise, easy-to-read, accurate estimate of your charges.
(3) A notice of the availability of the applicable sections of your
tariff for the estimate of charges, including an explanation that
individual shippers may examine these tariff sections or have copies
sent to them upon request.
(4) A concise, easy-to-read, accurate summary of the your
arbitration program.
(5) A concise, easy to read, accurate summary of your customer
complaint and inquiry handling procedures. Included in this description
must be both of the following two items:
(i) The main telephone number the individual shipper may use to
communicate with you.
(ii) A clear and concise statement concerning who must pay for
telephone calls.
(b) To comply with paragraph (a)(1) of this section, you must
produce and distribute a document with the text and general order of
appendix A to this part as it appears. The following three items also
apply:
(1) If we, the Federal Motor Carrier Safety Administration, choose
to modify the text or general order of appendix A, we will provide the
public appropriate notice in the Federal Register and an opportunity
for comment as required by part 389 of this chapter before making you
change anything.
(2) If you publish the document, you may choose the dimensions of
the publication as long as the type font size is at least 10 point or
greater and the size of the booklet is at least as large as 36 square
inches (232 square centimeters).
(3) If you publish the document, you may choose the color and
design of the front and back covers of the publication. The following
words must appear prominently on the front cover in at least 12 point
or greater bold or full-faced type: ``Your Rights And Responsibilities
When You Move. Furnished By Your Mover, As Required By Federal Law.''
You may substitute your name or trade name in place of ``Your Mover''
if you wish (for example, Furnished by XYZ Van Lines, As Required By
Federal Law).
(c) Paragraphs (b)(2) and (b)(3) of this section do not apply to
exact copies of appendix A published in the Federal Register or the
Code of Federal Regulations.
Collecting Transportation Charges
Sec. 375.215 How must I collect charges?
You must issue an honest, truthful freight or expense bill in
accordance with subpart A of part 373 of this chapter. All rates and
charges for the transportation and related services must be in
accordance with your appropriately published tariff provisions in
effect, including the method of payment.
Sec. 375.217 How must I collect charges upon delivery?
(a) You must specify the form of payment when you prepare the
estimate. You and your agents must honor the form of payment at
delivery, except when a shipper agrees to a change in writing.
(b) You must specify the same form of payment provided in paragraph
(a) of this section when you prepare the order for service and the bill
of lading.
(c) Charge or credit card payments:
(1) If you agree to accept payment by charge or credit card, you
must arrange with the individual shipper for the delivery of the
household goods during the time your credit/collection department is
open so you may seek approval of payment by the card issuer.
(2) Paragraph (c)(1) of this section does not apply to you when you
have equipped your motor vehicle(s) to process card transactions.
(d) You may maintain a tariff setting forth nondiscriminatory rules
governing collect-on-delivery service and the collection of collect-on-
delivery funds.
(e) If an individual shipper pays you at least 110 percent of the
approximate costs of a non-binding estimate on a collect-on-delivery
shipment, you must relinquish possession of the shipment at the time of
delivery.
Sec. 375.219 May I extend credit to shippers?
You may extend credit to shippers, but, if you do, it must be in
accordance with Sec. 375.807.
Sec. 375.221 May I use a charge or credit card plan for payments?
(a) You may provide in your tariff for the acceptance of charge or
credit cards for the payment of freight charges. Accepting charge or
credit card payments is different than extending credit to shippers in
Sec. Sec. 375.219 and 375.807. Once you provide an estimate you are
bound by the provisions in your tariff regarding payment as of the
estimate date, until completion of any transaction that results from
that estimate, unless otherwise agreed with a shipper under Sec.
375.217(a).
(b) You may accept charge or credit cards whenever shipments are
transported under agreements and tariffs requiring payment by cash,
certified check, money order, or a cashier's check.
(c) If you allow an individual shipper to pay for a freight or
expense bill by charge or credit card, you are deeming such payment to
be the same as payment by cash, certified check, money order, or a
cashier's check.
(d) The charge or credit card plans you participate in must be
identified in your tariff rules as items permitting the acceptance of
the charge or credit cards.
(e) If an individual shipper causes a charge or credit card issuer
to reverse a charge transaction, you may consider the individual
shipper's action tantamount to forcing you to provide an involuntary
extension of your credit. In such instances, the rules in Sec. 375.807
apply.
Subpart C--Service Options Provided
Sec. 375.301 What service options may I provide?
(a) You may design your household goods service to provide
individual shippers with a wide range of specialized service and
pricing features. Many carriers provide at least the following five
service options:
(1) Space reservation.
(2) Expedited service.
(3) Exclusive use of a vehicle.
(4) Guaranteed service on or between agreed dates.
(5) Liability insurance.
(b) If you sell liability insurance, you must follow the
requirements in Sec. 375.303.
Sec. 375.303 If I sell liability insurance coverage, what must I do?
(a) You, your employee, or an agent, may sell, offer to sell, or
procure liability insurance coverage for loss or damage to shipments of
any individual shippers only when the individual shipper releases the
shipment for transportation at a value not exceeding 60 cents per pound
($1.32 per kilogram) per article.
(b) You may offer, sell, or procure any type of insurance policy on
behalf of the individual shipper covering loss or damage in excess of
the specified carrier liability.
(c) You must issue to the individual shipper a policy or other
appropriate evidence of the insurance the individual shipper purchased.
(d) You must provide a copy of the policy or other appropriate
evidence to the individual shipper at the time you sell or procure the
insurance.
(e) You must issue policies written in plain English.
(f) You must clearly specify the nature and extent of coverage
under the policy.
(g) Your failure to issue a policy, or other appropriate evidence
of insurance purchased, to an individual shipper will subject you to
full liability for any
[[Page 35095]]
claims to recover loss or damage attributed to you.
(h) You must provide in your tariff for the provision of selling,
offering to sell, or procuring liability insurance coverage. The tariff
must also provide for the base transportation charge, including your
assumption for full liability for the value of the shipment. This would
be in the event you fail to issue a policy or other appropriate
evidence of insurance to the individual shipper at the time of
purchase.
Subpart D--Estimating Charges
Sec. 375.401 Must I estimate charges?
(a) Before you execute an order for service for a shipment of
household goods for an individual shipper, you must estimate the total
charges in writing. The written estimate must be one of the following
two types:
(1) A binding estimate, an agreement made in advance with your
individual shipper. It guarantees the total cost of the move based upon
the quantities and services shown on your estimate.
(2) A non-binding estimate, what you believe the total cost will be
for the move, based upon the estimated weight or volume of the shipment
and the accessorial services requested. A non-binding estimate is not
binding on you. You will base the final charges upon the actual weight
of the individual shipper's shipment and the tariff provisions in
effect.
(b) You must specify the form of payment you and your agent will
honor at delivery. Payment forms may include, but are not limited to,
cash, a certified check, a money order, a cashier s check, a specific
charge card such as American ExpressTM, a specific credit
card such as VisaTM, or your credit as allowed by Sec.
375.807.
(c) For non-binding estimates, you must provide your reasonably
accurate estimate of the approximate costs the individual shipper
should expect to pay for the transportation and services of such
shipments. If you provide an inaccurately low estimate, you may be
limiting the amount you will collect at the time of delivery as
provided in Sec. 375.407.
(d) If you provide a shipper with an estimate based on volume that
will later be converted to a weight-based rate, you must provide the
shipper an explanation in writing of the formula used to calculate the
conversion to weight. You must specify the final charges will be based
on actual weight and services subject to the 110 percent rule at
delivery.
(e) You must determine charges for any accessorial services such as
elevators, long carries, etc., before preparing the order for service
and the bill of lading for binding or non-binding estimates. If you
fail to ask the shipper about such charges and fail to determine such
charges before preparing the order for service and the bill of lading,
you must deliver the goods and bill the shipper after 30 days for the
additional charges.
(f) You and the individual shipper must sign the estimate of
charges. You must provide a dated copy of the estimate of charges to
the individual shipper at the time you sign the estimate.
(g) Before loading a household goods shipment, and upon mutual
agreement of both you and the individual shipper, you may amend an
estimate of charges. You may not amend the estimate after loading the
shipment.
Sec. 375.403 How must I provide a binding estimate?
(a) You may provide a guaranteed binding estimate of the total
shipment charges to the individual shipper, so long as it is provided
for in your tariff. The individual shipper must pay the amount for the
services included in your estimate. You must comply with the following
nine requirements:
(1) You must provide a binding estimate in writing to the
individual shipper or other person responsible for payment of the
freight charges.
(2) You must retain a copy of each binding estimate as an
attachment to be made an integral part of the bill of lading contract.
(3) You must clearly indicate upon each binding estimate's face the
estimate is binding upon you and the individual shipper. Each binding
estimate must also clearly indicate on its face the charges shown are
the charges being assessed for only those services specifically
identified in the estimate.
(4) You must clearly describe binding estimate shipments and all
services you are providing.
(5) If it appears an individual shipper has tendered additional
household goods or requires additional services not identified in the
binding estimate, you are not required to honor the estimate. If an
agreement cannot be reached as to the price or service requirements for
the additional goods or services, you are not required to service the
shipment. However, if you do service the shipment, before loading the
shipment, you must do one of the following three things:
(i) Reaffirm your binding estimate.
(ii) Negotiate a revised written binding estimate listing the
additional household goods or services.
(iii) Agree with the individual shipper, in writing, that both of
you will consider the original binding estimate as a non-binding
estimate subject to Sec. 375.405.
(6) Once you load a shipment, failure to execute a new binding
estimate or a non-binding estimate signifies you have reaffirmed the
original binding estimate. You may not collect more than the amount of
the original binding estimate.
(7) If you believe additional services are necessary to properly
service a shipment after the household goods are in-transit, you must
inform the individual shipper what the additional services are before
performing those services. You must allow the shipper at least one hour
to determine whether he/she wants the additional services performed. If
the individual shipper agrees to pay for the additional services, you
must execute a written attachment to be made an integral part of the
bill of lading contract and have the individual shipper sign the
written attachment. This may be done through fax transmissions. You
must bill the individual shipper for the additional services after 30
days after delivery. If the shipper does not agree to pay the
additional services performed by the carrier after the shipment is
picked up, the carrier should perform the additional services as
required to complete the delivery and bill the individual shipper for
the additional services after 30 days after delivery.
(8) If the individual shipper requests additional services after
the household goods are in-transit, you must inform the individual
shipper additional charges will be billed. You must require full
payment at destination of the original binding estimate only. You must
bill for the payment of the balance of any remaining charges after 30
days after delivery. For example, if your binding estimate to an
individual shipper estimated total charges at delivery as $1,000, but
your actual charges at destination are $1,500, you must deliver the
shipment upon payment of $1,000. You then must issue freight or expense
bills after 30 days after delivery for the remaining $500.
(9) Failure to relinquish possession of a shipment upon an
individual shipper's offer to pay the binding estimate amount
constitutes a failure to transport a shipment with ``reasonable
dispatch'' and subjects you to cargo delay claims pursuant to part 370
of this chapter.
(b) If you do not provide a binding estimate to an individual
shipper, you
[[Page 35096]]
must provide a non-binding estimate to the individual shipper in
accordance with Sec. 375.405.
(c) You must retain a copy of the binding estimate for each move
you perform for at least one year from the date you made the estimate
and keep it as an attachment to be made an integral part of the bill of
lading contract.
Sec. 375.405 How must I provide a non-binding estimate?
(a) If you do not provide a binding estimate to an individual
shipper in accordance with Sec. 375.403, you must provide a non-
binding written estimate to the individual shipper.
(b) If you provide a non-binding estimate to an individual shipper,
you must provide your reasonably accurate estimate of the approximate
costs the individual shipper should expect to pay for the
transportation and services of the shipment. You must comply with the
following ten requirements:
(1) You must provide reasonably accurate non-binding estimates
based upon the estimated weight or volume of the shipment and services
required. If you provide a shipper with an estimate based on volume
that will later be converted to a weight-based rate, you must provide
the shipper an explanation in writing of the formula used to calculate
the conversion to weight.
(2) You must explain to the individual shipper final charges
calculated for shipments moved on non-binding estimates will be those
appearing in your tariffs applicable to the transportation. You must
explain to the individual shipper these final charges may exceed the
approximate costs appearing in your estimate.
(3) You must furnish non-binding estimates without charge and in
writing to the individual shipper or other person responsible for
payment of the freight charges.
(4) You must retain a copy of each non-binding estimate as an
attachment to be made an integral part of the bill of lading contract.
(5) You must clearly indicate on the face of a non-binding
estimate, the estimate is not binding upon you and the charges shown
are the approximate charges to be assessed for the services identified
in the estimate. The estimate must clearly state that the shipper may
not be required to pay more than 110 percent of the non-binding
estimate at the time of delivery.
(6) You must clearly describe on the face of a non-binding estimate
the entire shipment and all services you are providing.
(7) If it appears an individual shipper has tendered additional
household goods or requires additional services not identified in the
non-binding estimate, you are not required to honor the estimate. If an
agreement cannot be reached as to the price or service requirements for
the additional goods or services, you are not required to service the
shipment. However, if you do service the shipment, before loading the
shipment, you must do one of the following two things:
(i) Reaffirm your non-binding estimate.
(ii) Negotiate a revised written non-binding estimate listing the
additional household goods or services.
(8) Once you load a shipment, failure to execute a new non-binding
estimate signifies you have reaffirmed the original non-binding
estimate. You may not collect more than 110 percent of the amount of
the original non-binding estimate at destination.
(9) If you believe additional services are necessary to properly
service a shipment after the household goods are in-transit, you must
inform the individual shipper what the additional services are before
performing those services. You must allow the shipper at least one hour
to determine whether he/she wants the additional services performed. If
the individual shipper agrees to pay for the additional services, you
must execute a written attachment to be made an integral part of the
bill of lading contract and have the individual shipper sign the
written attachment. This may be done through fax transmissions. You
must bill the individual shipper for the additional services after 30
days after delivery. If the shipper does not agree to pay the
additional services performed by the carrier after the shipment is
picked up, the carrier should perform the additional services as
required to complete the delivery and bill the individual shipper for
the additional services after 30 days after delivery.
(10) If the individual shipper requests additional services after
the household goods are in-transit, you must inform the individual
shipper additional charges will be billed. You may require full payment
at destination of no more than 110 percent of the original non-binding
estimate. You must bill for the payment of the balance of any remaining
charges after 30 days after delivery. For example, if your non-binding
estimate to an individual shipper estimated total charges at delivery
as $1,000, but your actual charges at destination are $1,500, you must
deliver the shipment upon payment of $1,100 (110 percent of the
estimated charges) and forego demanding immediate payment of the
balance. You then must issue a freight or expense bill for the
remaining $400 after the 30-day period expires.
(c) If you furnish a non-binding estimate, you must enter the
estimated charges upon the order for service and upon the bill of
lading.
(d) You must retain a copy of the non-binding estimate for each
move you perform for at least one year from the date you made the
estimate and keep it as an attachment to be made an integral part of
the bill of lading contract.
Sec. 375.407 Under what circumstances must I relinquish possession of
a collect-on-delivery shipment transported under a non-binding
estimate?
(a) If an individual shipper pays you at least 110 percent of the
approximate costs of a non-binding estimate on a collect-on-delivery
shipment, you must relinquish possession of the shipment at the time of
delivery. You must accept the form of payment agreed to at the time of
estimate, unless the shipper agrees in writing to a change in the form
of payment.
(b) Failure to relinquish possession of a shipment upon an
individual shipper's offer to pay 110 percent of the estimated charges
constitutes a failure to transport the shipment with ``reasonable
dispatch'' and subjects you to cargo delay claims pursuant to part 370
of this chapter.
(c) You must defer billing for the payment of the balance of any
remaining charges for a period of 30 days following the date of
delivery. After this 30-day period, you may demand payment of the
balance of any remaining charges, as explained in Sec. 375.405.
Sec. 375.409 May household goods brokers provide estimates?
A household goods broker must not provide an individual shipper
with an estimate of charges for the transportation of household goods
unless there is a written agreement between the broker and you, the
carrier, adopting the broker's estimate as your own estimate. If you
make such an agreement with a broker, you must ensure compliance with
all requirements of this part pertaining to estimates, including the
requirement that you must relinquish possession of the shipment if the
shipper pays you 110 percent of a non-binding estimate at the time of
delivery.
[[Page 35097]]
Subpart E--Pick Up of Shipments of Household Goods
Before Loading
Sec. 375.501 Must I write up an order for service?
(a) Before you receive a shipment of household goods you will move
for an individual shipper, you must prepare an order for service. The
order for service must contain the information described in the
following 15 items:
(1) Your name and address and the FMCSA U.S. DOT number assigned to
the mover who is responsible for performing the service.
(2) The individual shipper's name, address and, if available, its
telephone number(s).
(3) The name, address, and telephone number of the delivering
mover's office or agent located at or nearest to the destination of the
shipment.
(4) A telephone number where the individual shipper/consignee may
contact you or your designated agent.
(5) One of the following three entries must be on the order for
service:
(i) The agreed pickup date and agreed delivery date of the move.
(ii) The agreed period(s) of the entire move.
(iii) If you are transporting the shipment on a guaranteed service
basis, the guaranteed dates or periods for pickup, transportation, and
delivery. You must enter any penalty or per diem requirements upon the
agreement under this item.
(6) The names and addresses of any other motor carriers, when
known, who will participate in interline transportation of the
shipment.
(7) The form of payment you and your agents will honor at delivery.
The payment information must be the same that was entered on the
estimate.
(8) The terms and conditions for payment of the total charges,
including notice of any minimum charges.
(9) The maximum amount you will demand at the time of delivery to
obtain possession of the shipment, when you transport on a collect-on-
delivery basis.
(10) The Surface Transportation Board's required released rates
valuation statement, and the charges, if any, for optional valuation
coverage. The released rates may be increased annually by the carrier
based on the Department of Commerce's Cost of Living Adjustment.
(11) A complete description of any special or accessorial services
ordered and minimum weight or volume charges applicable to the
shipment, subject to the following two conditions:
(i) If you provide service for individual shippers on rates based
upon the transportation of a minimum weight or volume, you must
indicate on the order for service the minimum weight- or volume-based
rates, and the minimum charges applicable to the shipment.
(ii) If you do not indicate the minimum rates and charges, your
tariff must provide you will compute the final charges relating to such
a shipment based upon the actual weight or volume of the shipment.
(12) Any identification or registration number you assign to the
shipment.
(13) For non-binding estimates, your reasonably accurate estimate
of the amount of the charges, the method of payment of total charges,
and the maximum amount (no more than 110 percent of the non-binding
estimate) you will demand at the time of delivery to relinquish
possession of the shipment.
(14) For binding estimates, the amount of charges you will demand
based upon the binding estimate and the terms of payment under this
estimate.
(15) Whether the individual shipper requests notification of the
charges before delivery. The individual shipper must provide you with
the telephone number(s) or address(es) where you will transmit the
notification.
(b) You, your agent, or your driver must inform the individual
shipper if you reasonably expect a special or accessorial service is
necessary to safely transport a shipment. You must refuse to accept the
shipment when you reasonably expect a special or accessorial service is
necessary to safely transport a shipment and the individual shipper
refuses to purchase the special or accessorial service. You must make a
written note if the shipper refuses any special or accessorial services
that you reasonably expect to be necessary.
(c) You and the individual shipper must sign the order for service.
You must provide a dated copy of the order for service to the
individual shipper at the time you sign the order.
(d)(1) You may provide the individual shipper with blank or
incomplete estimates, orders for service, bills of lading, or any other
blank or incomplete documents pertaining to the move.
(2) You are forbidden from requiring the individual shipper to sign
any blank or incomplete estimates, orders for service, bills of lading,
or any other blank or incomplete documents pertaining to the move.
(e) You must provide the individual shipper the opportunity to
rescind the order for service without any penalty for a three-day
period after the shipper signs the order for service, if the shipper
scheduled the shipment to be loaded more than three days after signing
the order.
(f) Before loading the shipment, and upon mutual agreement of both
you and the individual shipper, you may amend an order for service.
(g) You must retain a copy of the order for service for each move
you perform for at least one year from the date you made the order for
service and keep it as an attachment to be made an integral part of the
bill of lading contract.
Sec. 375.503 Must I write up an inventory?
(a) You must prepare a written, itemized inventory for each
shipment of household goods you transport for an individual shipper.
The inventory must identify every carton and every uncartoned item that
is included in the shipment. When you prepare the inventory, an
identification number that corresponds to the inventory must be placed
on each article that is included in the shipment.
(b) You must prepare the inventory before the shipment is loaded in
the vehicle for transportation in a manner that provides the individual
shipper with the opportunity to observe and verify the accuracy of the
inventory if he or she so requests.
(c) You must furnish a complete copy of the inventory to the
individual shipper before beginning to load the shipment. A copy of the
inventory, signed by both you and the individual shipper, must be
provided to the shipper, together with a copy of the bill of lading,
before you begin to load the shipment.
(d) Upon delivery, you must provide the individual shipper with the
opportunity to observe and verify that the same articles are being
delivered and the condition of those articles. You must also provide
the individual shipper the opportunity to note in writing any missing
articles and the condition of any damaged or destroyed articles. In
addition, you must also provide the shipper with a copy of all such
notations.
(e) You must retain inventories for each move you perform for at
least one year from the date you made the inventory and keep it as an
attachment to be made an integral part of the bill of lading contract.
Sec. 375.505 Must I write up a bill of lading?
(a) You must issue a bill of lading. The bill of lading must
contain the terms and conditions of the contract. You must furnish a
complete copy of the bill of lading to the individual shipper before
beginning to load the shipment.
[[Page 35098]]
(b) On a bill of lading, you must include the following 14 items:
(1) Your name and address, or the name and address of the motor
carrier issuing the bill of lading.
(2) The names and addresses of any other motor carriers, when
known, who will participate in transportation of the shipment.
(3) The name, address, and telephone number of your office (or the
office of your agent) where the individual shipper can contact you in
relation to the transportation of the shipment.
(4) The form of payment you and your agents will honor at delivery.
The payment information must be the same that was entered on the
estimate and order for service.
(5) When you transport on a collect-on-delivery basis, the name,
address, and if furnished, the telephone number of a person to notify
about the charges.
(6) For non-guaranteed service, the agreed date or period of time
for pickup of the shipment and the agreed date or period of time for
the delivery of the shipment. The agreed dates or periods for pickup
and delivery entered upon the bill of lading must conform to the agreed
dates or periods of time for pickup and delivery entered upon the order
for service or a proper amendment to the order for service.
(7) For guaranteed service, subject to tariff provisions, the dates
for pickup and delivery, and any penalty or per diem entitlements due
the individual shipper under the agreement.
(8) The actual date of pickup.
(9) The company or carrier identification number of the vehicle(s)
upon which you load the individual shipper's shipment.
(10) The terms and conditions for payment of the total charges,
including notice of any minimum charges.
(11) The maximum amount you will demand at the time of delivery to
obtain possession of the shipment, when you transport under a collect-
on-delivery basis.
(12) The Surface Transportation Board's required released rates
valuation statement, and the charges, if any, for optional valuation
coverage. The released rates may be increased annually by the carrier
based on the Department of Commerce's Cost of Living Adjustment.
(13) Evidence of any insurance coverage sold to or procured for the
individual shipper from an independent insurer, including the amount of
the premium for such insurance.
(14) Each attachment to the bill of lading. Each attachment is an
integral part of the bill of lading contract. The following three items
must be added as an attachment to the bill of lading.
(i) The binding or non-binding estimate.
(ii) The order for service.
(iii) The inventory.
(c) A copy of the bill of lading must accompany a shipment at all
times while in your (or your agent's) possession. When you load the
shipment upon a vehicle for transportation, the bill of lading must be
in the possession of the driver responsible for the shipment.
(d) You must retain bills of lading for each move you perform for
at least one year from the date you created the bill of lading.
Weighing the Shipment
Sec. 375.507 Must I determine the weight of a shipment?
(a) When you transport household goods on a non-binding estimate
dependent upon the shipment weight, you must determine the weight of
each shipment transported before the assessment of any charges.
(b) You must weigh the shipment upon a certified scale.
(c) You must provide a written explanation of volume to weight
conversions, when you provide an estimate by volume and convert the
volume to weight.
Sec. 375.509 How must I determine the weight of a shipment?
(a) You must weigh the shipment by using one of the following two
methods:
(1) First method--origin weigh. You determine the difference
between the tare weight of the vehicle before loading at the origin of
the shipment and the gross weight of the same vehicle after loading the
shipment.
(2) Second method--back weigh. You determine the difference between
the gross weight of the vehicle with the shipment loaded and the tare
weight of the same vehicle after you unload the shipment.
(b) The following three conditions must exist for both the tare and
gross weighings:
(1) The vehicle must have installed or loaded all pads, dollies,
hand trucks, ramps, and other equipment required in the transportation
of the shipment.
(2) The driver and other persons must be off the vehicle at the
time of either weighing.
(3) The fuel tanks on the vehicle must be full at the time of each
weighing, or, in the alternative, when you use the first method--origin
weigh, in paragraph (a)(1) of this section, where the tare weighing is
the first weighing performed, you must refrain from adding fuel between
the two weighings.
(c) You may detach the trailer of a tractor-trailer vehicle
combination from the tractor and have the trailer weighed separately at
each weighing provided the length of the scale platform is adequate to
accommodate and support the entire trailer at one time.
(d) You must use the net weight of shipments transported in
containers. You must calculate the difference between the tare weight
of the container (including all pads, blocking and bracing used in the
transportation of the shipment) and the gross weight of the container
with the shipment loaded in the container.
Sec. 375.511 May I use an alternative method for shipments weighing
3,000 pounds or less?
For shipments weighing 3,000 pounds or less (1,362 kilograms or
less), you may weigh the shipment upon a platform or warehouse
certified scale before loading for transportation or after unloading.
Sec. 375.513 Must I give the individual shipper an opportunity to
observe the weighing?
You must give the individual shipper or any other person
responsible for the payment of the freight charges the right to observe
all weighings of the shipment. You must advise the individual shipper,
or any other person entitled to observe the weighings, where and when
each weighing will occur. You must give the person who will observe the
weighings a reasonable opportunity to be present to observe the
weighings.
Sec. 375.515 May an individual shipper waive his/her right to observe
each weighing?
(a) If an individual shipper elects not to observe a weighing, the
shipper is presumed to have waived that right.
(b) If an individual shipper elects not to observe a re-weighing,
the shipper must waive that right in writing. The individual shipper
may send the writing via fax, e-mail, or any other electronic means.
(c) Waiver of the right to observe a weighing or re-weighing does
not affect any other rights of the individual shipper under this part
or otherwise.
Sec. 375.517 May an individual shipper demand re-weighing?
After you inform the individual shipper of the billing weight and
total charges and before actually beginning to unload a shipment
weighed at origin (first method under Sec. 375.509(a)(1)), the
individual shipper may demand a re-weigh. You must base your freight
bill charges upon the re-weigh weight.
[[Page 35099]]
Sec. 375.519 Must I obtain weight tickets?
(a) You must obtain weight tickets whenever we require you to weigh
the shipment in accordance with this subpart. You must obtain a
separate weight ticket for each weighing. The weigh master must sign
each weight ticket. Each weight ticket must contain the following six
items:
(1) The complete name and location of the scale.
(2) The date of each weighing.
(3) The identification of the weight entries as being the tare,
gross, or net weights.
(4) The company or carrier identification of the vehicle.
(5) The last name of the individual shipper as it appears on the
bill of lading.
(6) The carrier's shipment registration or bill of lading number.
(b) When both weighings are performed on the same scale, one weight
ticket may be used to record both weighings.
(c) As part of the file on the shipment, you must retain the
original weight ticket or tickets relating to the determination of the
weight of a shipment.
(d) All freight bills you present to an individual shipper must
include true copies of all weight tickets obtained in the determination
of the shipment weight in order to collect any shipment charges
dependent upon the weight transported.
Sec. 375.521 What must I do if an individual shipper wants to know
the actual weight or charges for a shipment before I tender delivery?
(a) You must comply with a request of an individual shipper of a
shipment being transported on a collect-on-delivery basis who
specifically requests notification of the actual weight or volume and
charges on a shipment. This requirement is conditioned upon the
individual shipper supplying you with an address or telephone number
where the individual shipper will receive the communication. You must
make your notification by telephone, telegram, or in person.
(b) The individual shipper must receive your notification at least
one full 24-hour day before any tender of the shipment for delivery,
excluding Saturdays, Sundays and Federal holidays.
(c) You may disregard the 24-hour notification requirement on
shipments in any one of the following three circumstances:
(1) The shipment will be back weighed (i.e., weighed at
destination).
(2) Pickup and delivery encompass two consecutive weekdays, if the
individual shipper agrees.
(3) The shipment is moving under a non-binding estimate and the
maximum payment required at time of delivery is 110 percent of the
estimated charges, but only if the individual shipper agrees to waive
the 24-hour notification requirement.
Subpart F--Transportation of Shipments
Sec. 375.601 Must I transport the shipment in a timely manner?
Yes. Transportation in a timely manner is also known as
``reasonable dispatch service.'' You must provide reasonable dispatch
service to all individual shippers, except for transportation on the
basis of guaranteed pickup and delivery dates.
Sec. 375.603 When must I tender a shipment for delivery?
You must tender a shipment for delivery for an individual shipper
on the agreed delivery date or within the period specified on the bill
of lading. Upon the request or concurrence of the individual shipper,
you may waive this requirement.
Sec. 375.605 How must I notify an individual shipper of any service
delays?
(a) When you are unable to perform either the pickup or delivery of
a shipment on the dates or during the periods specified in the order
for service and as soon as the delay becomes apparent to you, you must
notify the individual shipper of the delay, at your expense, in one of
the following three ways:
(1) By telephone.
(2) By telegram.
(3) In person.
(b) You must advise the individual shipper of the dates or periods
you expect to be able to pick up and/or deliver the shipment. You must
consider the needs of the individual shipper in your advisement. You
also must do the following four things:
(1) You must prepare a written record of the date, time, and manner
of notification.
(2) You must prepare a written record of your amended date or
period for pick-up or delivery.
(3) You must retain these records as a part of your file on the
shipment. The retention period is one year from the date of
notification.
(4) You must furnish a copy of the notice to the individual shipper
by first class mail or in person if the individual shipper requests a
copy of the notice.
Sec. 375.607 What must I do if I am able to tender a shipment for
final delivery more than 24 hours before a specified date?
(a) You may ask the individual shipper to accept an early delivery
date. If the individual shipper does not concur with your request or
the individual shipper does not request an early delivery date, you
may, at your discretion, place a shipment in storage under your own
account and at your own expense in a warehouse located near the
destination of the shipment. If you place the shipment in storage, you
must comply with paragraph (b) of this section. You may comply with
paragraph (c) of this section, at your discretion.
(b) You must immediately notify the individual shipper of the name
and address of the warehouse where you place the shipment. You must
make and keep a record of your notification as a part of your shipment
records. You have responsibility for the shipment under the terms and
conditions of the bill of lading. You are responsible for the charges
for redelivery, handling, and storage until you make final delivery.
(c) You may limit your responsibility under paragraph (b) of this
section up to the agreed delivery date or the first day of the period
of time of delivery as specified in the bill of lading.
Sec. 375.609 What must I do for shippers who store household goods in
transit?
(a) If you are holding goods for storage-in-transit (SIT) and the
period of time is about to expire, you must comply with this section.
(b) You must notify the individual shipper, in writing of the
following four items:
(1) The date of conversion to permanent storage.
(2) The existence of a nine-month period after the date of
conversion to permanent storage when the individual shipper may file
claims against you for loss or damage occurring to the goods in transit
or during the storage-in-transit period.
(3) The fact your liability is ending.
(4) The fact the individual shipper's property will be subject to
the rules, regulations, and charges of the warehouseman.
(c) You must make this notification at least 10 days before the
expiration date of either one of the following two periods:
(1) The specified period of time when the goods are to be held in
storage.
(2) The maximum period of time provided in your tariff for storage-
in-transit.
(d) You must notify the individual shipper by facsimile
transmission,
[[Page 35100]]
overnight courier, e-mail, or certified mail, return receipt requested.
(e) If you are holding household goods in storage-in-transit for a
period of time less than 10 days, you must give notification to the
individual shipper of the information specified in paragraph (b) of
this section one day before the expiration date of the specified time
when the goods are to be held in such storage.
(f) You must maintain a record of notifications as part of the
records of the shipment.
(g) Your failure or refusal to notify the individual shipper will
automatically effect a continuance of your carrier liability according
to the applicable tariff provisions with respect to storage-in-transit,
until the end of the day following the date when you actually gave
notice.
Subpart G--Delivery of Shipments
Sec. 375.701 May I provide for a release of liability on my delivery
receipt?
(a) Your delivery receipt or shipping document must not contain any
language purporting to release or discharge you or your agents from
liability.
(b) The delivery receipt may include a statement the property was
received in apparent good condition except as noted on the shipping
documents.
Sec. 375.703 What is the maximum collect-on-delivery amount I may
demand at the time of delivery?
(a) On a binding estimate, the maximum amount is the exact estimate
of the charges.
(b) On a non-binding estimate, the maximum amount is 110 percent of
the non-binding estimate of the charges.
Sec. 375.705 If a shipment is transported on more than one vehicle,
what charges may I collect at delivery?
(a) At your discretion, you may do one of the following three
things:
(1) You may defer the collection of all charges until you deliver
the entire shipment.
(2) If you have determined the charges for the entire shipment, you
may collect charges for the portion of the shipment tendered for
delivery. You must determine the percentage of the charges for the
entire shipment represented by the portion of the shipment tendered for
delivery.
(3) If you cannot reasonably calculate the charges for the entire
shipment, you must determine the charges for the portion of the
shipment being delivered. You must collect this amount. The total
charges you assess for the transportation of the separate portions of
the shipment must not be more than the charges due for the entire
shipment.
(b) In the event of the loss or destruction of any part of a
shipment transported on more than one vehicle, you must collect the
charges as provided in Sec. 375.707.
Sec. 375.707 If a shipment is partially lost or destroyed, what
charges may I collect at delivery?
(a) If a shipment is partially lost or destroyed, you may first
collect your freight charges for the entire shipment, if you choose. If
you do this, you must refund the portion of your published freight
charges corresponding to the portion of the lost or destroyed shipment
(including any charges for accessorial or terminal services), at the
time you dispose of claims for loss, damage, or injury to the articles
in the shipment under part 370 of this chapter.
(b) To calculate the amount of charges applicable to the shipment
as delivered, you must multiply the percentage corresponding to the
delivered shipment by the total charges applicable to the shipment
tendered by the individual shipper. The following four conditions also
apply:
(1) If the charges computed exceed the charges otherwise applicable
to the shipment as delivered, the lesser of those charges must apply.
This will apply only to the transportation of household goods and not
to charges for other services the individual shipper ordered.
(2) You must collect any specific valuation charge due.
(3) You may disregard paragraph (a) of this section if loss or
destruction was due to an act or omission of the individual shipper.
(4) You must determine, at your own expense, the proportion of the
shipment, based on actual or constructive weight, not lost or destroyed
in transit.
(c) The individual shipper's rights are in addition to, and not in
lieu of, any other rights the individual shipper may have with respect
to a shipment of household goods you or your agent(s) partially lost or
destroyed in transit. This applies whether or not the individual
shipper exercises its rights provided in paragraph (a) of this section.
Sec. 375.709 If a shipment is totally lost or destroyed, what charges
may I collect at delivery?
(a) You are forbidden from collecting, or requiring an individual
shipper to pay, any freight charges (including any charges for
accessorial or terminal services) when a household goods shipment is
totally lost or destroyed in transit. The following two conditions also
apply:
(1) You must collect any specific valuation charge due.
(2) You may disregard paragraph (a) of this section if loss or
destruction was due to an act or omission of the individual shipper.
(b) The individual shipper's rights are in addition to, and not in
lieu of, any other rights the individual shipper may have with respect
to a shipment of household goods you or your agent(s) totally lost or
destroyed in transit. This applies whether or not the individual
shipper exercises its rights provided in paragraph (a) of this section.
Subpart H--Collection of Charges
Sec. 375.801 What types of charges apply to subpart H?
(a) This subpart applies to all shipments subject to binding
estimates.
(b) This subpart does not apply to collect-on-delivery shipments
subject to the 110 percent rule for non-binding estimates. You may
expect payment of not more than 110 percent of the estimated charges on
a collect-on-delivery non-binding estimate at the time of delivery. You
must bill the individual shipper for any balance due not sooner than 30
days after delivery.
Sec. 375.803 How must I present my freight or expense bill?
You must present your freight or expense bill in accordance with
Sec. 377.205 of this chapter.
Sec. 375.805 If I am forced to relinquish a collect-on-delivery
shipment before the payment of ALL charges, how do I collect the
balance?
On ``collect-on-delivery'' shipments, you must present your freight
bill for all transportation charges within 15 days as required by Sec.
375.807.
Sec. 375.807 What actions may I take to collect the charges upon my
freight bill?
(a) You must present a freight bill within 15 days (excluding
Saturdays, Sundays, and Federal holidays) of the date of delivery of a
shipment at its destination.
(b) The credit period must be seven days (including Saturdays,
Sundays, and Federal holidays).
(c) You must provide in your tariffs the following four things:
(1) You must automatically extend the credit period to a total of
30 calendar days for any shipper who has not paid your freight bill
within the 7-day period.
(2) You will assess a service charge to each individual shipper
equal to one percent of the amount of the freight bill,
[[Page 35101]]
subject to a $20 minimum charge, for the extension of the credit
period. You will assess the service charge for each 30-day extension
the charges go unpaid.
(3) You must deny credit to any shipper who fails to pay a duly-
presented freight bill within the 30-day period. You may grant credit
to the individual shipper when the individual shipper satisfies he/she
will promptly pay all future freight bills duly presented.
(4) You must ensure all payments of freight bills are strictly in
accordance with the rules and regulations of this part for the
settlement of your rates and charges.
Subpart I--Penalties
Sec. 375.901 What penalties do we impose for violations of this part?
The penalty provisions of 49 U.S.C. Chapter 149, Civil and Criminal
Penalties apply to this part. These penalties do not overlap.
Notwithstanding these civil penalties, nothing in this section shall
deprive any holder of a receipt or a bill of lading any remedy or right
of action under existing law.
Appendix A to Part 375--Your Rights and Responsibilities When You Move
You must furnish this document to prospective individual
shippers as required by Sec. 375.213. The text as it appears in
this appendix may be reprinted in a form and manner chosen by you,
provided it complies with Sec. 375.213(b)(2) and (b)(3). You do not
have to italicize titles of sections.
YOUR RIGHTS AND RESPONSIBILITIES WHEN YOU MOVE
OMB No. 2126-------.
Furnished By Your Mover, As Required By Federal Law
Authority: 49 U.S.C. 13301, 13704, 13707, and 14104; 49 CFR
1.73.
What is Included in This Pamphlet?
In this pamphlet, you will find a discussion of each of these
topics:
Why Was I Given This Pamphlet?
What Are The Most Important Points I Should Remember From This
Pamphlet?
What If I Have More Questions?
Subpart A--General Requirements
Who must follow the regulations?
What definitions are used in this pamphlet?
Subpart B--Before Requesting Services From Any Mover
What is my mover's normal liability for loss or damage when my
mover accepts goods from me?
What actions by me limit or reduce my mover's normal liability?
What are dangerous or hazardous materials that may limit or
reduce my mover's normal liability?
May my mover have agents?
What items must be in my mover's advertisements?
How must my mover handle complaints and inquiries?
Do I have the right to inspect my mover's tariffs (schedules of
charges) applicable to my move?
Must my mover have an arbitration program?
Must my mover inform me about my rights and responsibilities
under Federal law?
What other information must my mover provide to me?
How must my mover collect charges?
May my mover collect charges upon delivery?
May my mover extend credit to me?
May my mover accept charge or credit cards for my payments?
Subpart C--Service Options Provided
What service options may my mover provide?
If my mover sells liability insurance coverage, what must my
mover do?
Subpart D--Estimating Charges
Must my mover estimate the transportation and accessorial
charges for my move?
How must my mover estimate charges under the regulations?
What payment arrangements must my mover have in place to secure
delivery of my household goods shipment?
Subpart E--Pickup of My Shipment of Household Goods
Must my mover write up an order for service?
Must my mover write up an inventory of the shipment?
Must my mover write up a bill of lading?
Should I reach an agreement with my mover about pickup and
delivery times?
Must my mover determine the weight of my shipment?
How must my mover determine the weight of my shipment?
What must my mover do if I want to know the actual weight or
charges for my shipment before delivery?
Subpart F--Transportation of My Shipment
Must my mover transport the shipment in a timely manner?
What must my mover do if it is able to deliver my shipment more
than 24 hours before I am able to accept delivery?
What must my mover do for me when I store household goods in
transit?
Subpart G--Delivery of My Shipment
May my mover ask me to sign a delivery receipt releasing it from
liability?
What is the maximum collect-on-delivery amount my mover may
demand I pay at the time of delivery?
If my shipment is transported on more than one vehicle, what
charges may my mover collect at delivery?
If my shipment is partially or totally lost or destroyed, what
charges may my mover collect at delivery?
How must my mover calculate the charges applicable to the
shipment as delivered?
Subpart H--Collection of Charges
Does this subpart apply to most shipments?
How must my mover present its freight or expense bill to me?
If I forced my mover to relinquish a collect-on-delivery
shipment before the payment of ALL charges, how must my mover
collect the balance?
What actions may my mover take to collect from me the charges in
its freight bill?
Do I have a right to file a claim to recover money for property
my mover lost or damaged?
Subpart I--Resolving Disputes with My Mover
What may I do to resolve disputes with my mover?
Why Was I Given This Pamphlet?
The Federal Motor Carrier Safety Administration's (FMCSA)
regulations protect consumers on interstate moves and define the
rights and responsibilities of consumers and household goods
carriers.
The household goods carrier (mover) gave you this booklet to
provide information about your rights and responsibilities as an
individual shipper of household goods. Your primary responsibility
is to select a reputable household goods carrier, ensure that you
understand the terms and conditions of the contract, and understand
and pursue the remedies that are available to you when problems
arise. You should talk to your mover if you have further questions.
The mover will also furnish you with another booklet describing its
procedure for handling your questions and complaints. The other
booklet will include a telephone number you can call to obtain
additional information about your move.
What Are the Most Important Points I Should Remember From This
Pamphlet?
1. Movers must give written estimates.
2. Movers may give binding estimates.
3. Non-binding estimates are not always accurate; actual charges
may exceed the estimate.
4. You should not sign blank or incomplete documents or allow
anyone representing you to do so.
5. You may request from the mover the availability of guaranteed
pick up and delivery dates.
6. Be sure you understand the mover's responsibility for loss or
damage, and request an explanation of the difference between
valuation and actual insurance.
7. You have the right to be present each time your shipment is
weighed.
8. You may request a re-weigh of your shipment.
9. If you agree to move under a non-binding estimate, you should
confirm with your mover--in writing--the method of payment at
delivery as cash, certified check, cashier's check, money order, or
credit card.
10. Movers must offer a dispute settlement program as an
alternative means of settling loss or damage claims. ASK YOUR MOVER
FOR DETAILS.
[[Page 35102]]
11. You should ask the person you speak to whether he/she works
for the actual mover or a household goods broker. A household goods
broker only arranges for the transportation. A household goods
broker must not represent itself as a mover. A household goods
broker does not own trucks of its own. The broker is required to
find an authorized mover to provide the transportation. You should
know a household goods broker generally has no authority to provide
you an estimate on behalf of a specific mover. If a household goods
broker provides you an estimate, it may not be binding on the actual
mover and you may have to pay the actual charges the mover incurs. A
household goods broker is not responsible for loss or damage.
12. You may request complaint information about movers from the
Federal Motor Carrier Safety Administration under the Freedom of
Information Act. You may be assessed a fee to obtain this
information. See 49 CFR part 7 for the schedule of fees.
13. You should seek estimates from at least three different
movers. You should not disclose any information to the different
movers about their competitors, as it may affect the accuracy of
their estimates.
What If I Have More Questions?
If this pamphlet does not answer all of your questions about
your move, do not hesitate to ask your mover's representative who
handled the arrangements for your move, the driver who transports
your shipment, or the mover's main office for additional
information.
Subpart A--General Requirements
The primary responsibility for your protection lies with you in
selecting a reputable household goods carrier, ensuring you
understand the terms and conditions of your contract with your
mover, and understanding and pursuing the remedies that are
available to you when problems arise.
Who Must Follow the Regulations?
The regulations inform motor carriers engaged in the interstate
transportation of household goods (movers) what standards the movers
must follow when offering services to you. You, an individual
shipper, are not directly subject to the regulations. However, your
mover may be required by the regulations to force you to pay on
time. The regulations only apply to your mover when the mover
transports your household goods by motor vehicle in interstate
commerce, i.e., when you are moving from one State to another. The
regulations do not apply when your interstate move takes place
within a single commercial zone. A commercial zone is roughly
equivalent to the local metropolitan area of a city or town. For
example, a move between Brooklyn, NY, and Hackensack, NJ, would be
considered to be within the New York City commercial zone and would
not be subject to these regulations. Commercial zones are defined in
49 CFR part 372.
What Definitions Are Used in This Pamphlet?
Accessorial (additional) services--These are services such as
packing, appliance servicing, unpacking, or piano stair carries you
request to be performed (or are necessary because of landlord
requirements or other special circumstances). Charges for these
services are in addition to the transportation charges.
Advanced charges--These are charges for services not performed
by the mover, but by someone else. A professional, craftsman, or
other third party may perform these services at your request. The
mover pays for these services and adds the charges to your bill of
lading charges.
Advertisement--This is any communication to the public in
connection with an offer or sale of any interstate household goods
transportation service. This will include written or electronic
database listings of your mover's name, address, and telephone
number in an on-line database. This excludes listings of your
mover's name, address, and telephone number in a telephone directory
or similar publication. However, Yellow Pages advertising is
included within the definition.
Agent--A local moving company authorized to act on behalf of a
larger, national company.
Appliance service--The preparation of major electrical
appliances to make them safe for shipment. Charges for these
services are in addition to the transportation charges.
Bill of lading--The receipt for your goods and the contract for
its transportation.
Carrier--The mover transporting your household goods.
Cash on delivery (COD)--This means payment is required at the
time of delivery at the destination residence (or warehouse).
Certified scale--Any scale designed for weighing motor vehicles,
including trailers or semi-trailers not attached to a tractor, and
certified by an authorized scale inspection and licensing authority.
A certified scale may also be a platform or warehouse type scale
properly inspected and certified.
Estimate, binding--This is an agreement made in advance with
your mover. It guarantees the total cost of the move based upon the
quantities and services shown on the estimate.
Estimate, non-binding--This is what your mover believes the cost
will be based upon the estimated weight of the shipment and the
accessorial services requested. A non-binding estimate is not
binding on the mover. The final charges will be based upon the
actual weight of your shipment, the services provided, and the
tariff provisions in effect.
Expedited service--This is an agreement with the mover to
perform transportation by a set date in exchange for charges based
upon a higher minimum weight.
Flight charge--An extra charge for carrying items up or down
flights of stairs.
Guaranteed pickup and delivery service--An additional level of
service featuring guaranteed dates of service. Your mover will
provide reimbursement to you for delays. This premium service is
often subject to minimum weight requirements.
High value article--These are items included in a shipment
valued at more than $100 per pound ($220 per kilogram).
Household goods as used in connection with transportation, means
the personal effects or property used, or to be used, in a dwelling,
when part of the equipment or supplies of the dwelling.
Transportation of the household goods must be arranged and paid for
by you or by another individual on your behalf. This may include
items moving from a factory or store when you purchase them to use
in your dwelling. You must request that these items be transported
and you (or another individual on your behalf) must pay the
transportation charges to the mover.
Inventory--The detailed descriptive list of your household goods
showing the number and condition of each item.
Linehaul charges--The charges for the vehicle transportation
portion of your move. These charges apply in addition to the
accessorial service charges.
Long carry--An added charge for carrying articles excessive
distances between the mover's vehicle and your residence.
May--An option. You or your mover may do something, but it is
not a requirement.
Mover--A motor carrier engaged in the transportation of
household goods and its household goods agents.
Must--A legal obligation. You or your mover must do something.
Order for service--The document authorizing the mover to
transport your household goods.
Order (bill of lading) number--The number used to identify and
track your shipment.
Peak season rates--Higher linehaul charges applicable during the
summer months.
Pickup and delivery charges--Separate transportation charges
applicable for transporting your shipment between the storage-in-
transit warehouse and your residence.
Reasonable dispatch--The performance of transportation on the
dates, or during the period of time, agreed upon by you and your
mover and shown on the Order For Service/Bill of Lading. For
example, if your mover deliberately withholds any shipment from
delivery after you offer to pay the binding estimate or 110 percent
of a non-binding estimate, your mover has not transported the goods
with reasonable dispatch. The term ``reasonable dispatch'' excludes
transportation provided under your mover's tariff provisions
requiring guaranteed service dates. Your mover will have the
defenses of force majeure, i.e., that the contract cannot be
performed due to causes which are outside the control of the parties
and could not be avoided by exercise of due care.
Should--A recommendation. We recommend you or your mover do
something, but it is not a requirement.
Shuttle service--The use of a smaller vehicle to provide service
to residences not accessible to the mover's normal linehaul
vehicles.
Storage-in-transit (SIT)--The temporary warehouse storage of
your shipment pending further transportation. For example, you may
need SIT if your new home is not quite ready
[[Page 35103]]
to occupy. You must specifically request SIT service. This may not
exceed a total of 180 days of storage. You will be responsible for
the added charges for SIT service, as well as the warehouse handling
and final delivery charges.
Surface Transportation Board--An agency within the Department of
Transportation that regulates household good carrier tariffs among
other responsibilities. The Surface Transportation Board's address
is 1925 K Street NW., Washington, DC 20423-0001 Tele. 202-565-1674.
Tariff--An issuance (in whole or in part) containing rates,
rules, regulations, classifications or other provisions. The Surface
Transportation Board requires a tariff contain three specific items.
First, an accurate description of the services the mover offers to
the public. Second, the specific applicable rates (or the basis for
calculating the specific applicable rates) and service terms for
services offered to the public. Finally, the mover's tariff must be
arranged in a way that allows you to determine the exact rate(s) and
service terms applicable to your shipment.
Valuation--The degree of ``worth'' of the shipment. The
valuation charge compensates the mover for assuming a greater degree
of liability than is provided for in its base transportation
charges.
Warehouse handling--An additional charge applicable each time
SIT service is provided. This charge compensates the mover for the
physical placement and removal of items within the warehouse.
We, Us, and Our--The Federal Motor Carrier Safety Administration
(FMCSA).
You and Your--You are an individual shipper of household goods.
You are a consignor or consignee of a household goods shipment and
your mover identifies you as such in the bill of lading contract.
You own the goods being transported and you pay the transportation
charges to the mover.
Where may other terms used in this pamphlet be defined? You may
find other terms used in this pamphlet defined in 49 U.S.C. 13102.
The statute controls the definitions in this pamphlet. If terms are
used in this pamphlet and the terms are neither defined here nor in
49 U.S.C. 13102, the terms will have the ordinary practical meaning
of such terms.
Subpart B--Before requesting services from any mover
What Is My Mover's Normal Liability for Loss or Damage When My Mover
Accepts Goods From Me?
In general, your mover is legally liable for loss or damage if
it happens during performance of any transportation of household
goods and all related services identified on your mover's lawful
bill of lading.
Your mover is liable for loss of, or damage to, any household
goods to the extent provided in the current Surface Transportation
Board's Released Rates Order. You may obtain a copy of the current
Released Rates Order by contacting the Surface Transportation Board
at the address in the definition of the Surface Transportation
Board. The rate may be increased annually by your mover based on the
Department of Commerce's Cost of Living Adjustment. Your mover may
have additional liability if your mover sells liability insurance to
you.
All moving companies are required to assume liability for the
value of the goods transported. However, there are different levels
of liability, and you should be aware of the amount of protection
provided and the charges for each option.
Basically, most movers offer two different levels of liability
(options 1 and two, below) under the terms of their tariffs and the
Surface Transportation Board's Released Rates Orders. These orders
govern the moving industry.
Option 1: Released Value
This is the most economical protection option available. This
no-additional cost option provides minimal protection. Under this
option, the mover assumes liability for no more than 60 cents per
pound ($1.32 cents per kilogram), per article. Loss or damage claims
are settled based upon the pound (kilogram) weight of the article
multiplied by 60 cents per pound ($1.32 cents per kilogram). For
example, if your mover lost or destroyed a 10-pound (4.54-kilogram)
stereo component valued at $1000, your mover would be liable for no
more than $6.00. Obviously, you should think carefully before
agreeing to such an arrangement. There is no extra charge for this
minimal protection, but you must sign a specific statement on the
bill of lading agreeing to it.
Option 2: Full Value Protection (FVP)
Under this option, the mover is liable for the replacement value
of lost or damaged goods (as long as it doesn't exceed the total
declared value of the shipment). If you elect to purchase full value
protection, when your mover loses, damages or destroys your
articles, your mover must repair, replace with like items, or settle
in cash at the current market replacement value, regardless of the
age of the lost or damaged item. The minimum declared value of a
shipment under this option is $5,000 or $4.00 times the actual total
weight (in pounds) of the shipment, whichever is greater. For
example, the minimum declared value for a 4,000-pound (1,814.4-
kilogram) shipment would be $16,000. Your mover may offer you FVP
with a $250 or $500 deductible, or with no deductible at all. The
amount of the deductible will affect the cost of your FVP coverage.
The $4.00 per pound minimum valuation rate may be increased annually
by your mover based on changes in the household furnishings element
of the Consumer Price Index established by the U.S. Department of
Labor's Bureau of Labor Statistics.
Unless you specifically agree to other arrangements, the mover
must assume liability for the entire shipment based upon this
option. The approximate cost for FVP is $8.50 for each $1000 of
declared value; however, it may vary by mover. In the example above,
the valuation charge for a shipment valued at $16,000 would be
$136.00. This fee may be adjusted annually by your mover based on
changes in the household furnishings element of the Consumer Price
Index.
Under these two options, movers are permitted to limit their
liability for loss or damage to articles of extraordinary value,
unless you specifically list these articles on the shipping
documents. An article of extraordinary value is any item whose value
exceeds $100 per pound ($220 per kilogram). Ask your mover for a
complete explanation of this limitation before your move. It is your
responsibility to study this provision carefully and to make the
necessary declaration.
These optional levels of liability are not insurance agreements
governed by State insurance laws, but instead are authorized under
Released Rates Orders of the Surface Transportation Board of the
U.S. Department of Transportation.
In addition to these options, some movers may also offer to
sell, or procure for you, separate liability insurance from a third-
party insurance company when you release your shipment for
transportation at the minimum released value of 60 cents per pound
($1.32 per kilogram) per article (Option 1). This is not valuation
coverage governed by Federal law, but optional insurance regulated
under State law. If you purchase this separate coverage and your
mover is responsible for loss or damage, the mover is liable only
for an amount not exceeding 60 cents per pound ($1.32 per kilogram)
per article, and the balance of the loss is recoverable from the
insurance company up to the amount of insurance purchased. The
mover's representative can advise you of the availability of such
liability insurance and the cost.
If you purchase liability insurance from or through your mover,
the mover is required to issue a policy or other written record of
the purchase and to provide you with a copy of the policy or other
document at the time of purchase. If the mover fails to comply with
this requirement, the mover becomes fully liable for any claim for
loss or damage attributed to its negligence.
What Actions by Me Limit or Reduce My Mover's Normal Liability?
Your actions may limit or reduce your mover's normal liability,
under the following three circumstances:
(1) You include perishable, dangerous, or hazardous materials in
your household goods without your mover's knowledge.
(2) You ship household goods valued at more than 60 cents per
pound ($1.32 per kilogram) per article.
(3) You fail to notify your mover in writing of articles valued
at more than $100 per pound ($220 per kilogram). (If you do notify
your mover, you will be entitled to full recovery up to the declared
value of the article or articles, not to exceed the declared value
of the entire shipment.)
What Are Dangerous or Hazardous Materials That May Limit or Reduce My
Mover's Normal Liability?
Federal law forbids you shipping hazardous materials in your
household goods boxes or luggage without informing your mover. A
violation can result in five years'
[[Page 35104]]
imprisonment and penalties of $250,000 or more (49 U.S.C. 5124). You
may also lose or damage your household goods by fire, explosion, or
contamination.
If you offer hazardous materials to your mover, you are
considered a hazardous materials shipper and must comply with the
hazardous material requirements in 49 CFR parts 171, 172, and 173,
including, but not limited to package labeling and marking, shipping
papers, and emergency response information. Your mover must comply
with 49 CFR parts 171, 172, 173, and 177 as a hazardous materials
carrier.
Hazardous materials include explosives, compressed gases,
flammable liquids and solids, oxidizers, poisons, corrosives, and
radioactive materials.
Examples: Nail polish remover, paints, paint thinners, lighter
fluid, gasoline, fireworks, oxygen bottles, propane cylinders,
automotive repair and maintenance chemicals, and radio-
pharmaceuticals.
There are special exceptions for small quantities (up to 70
ounces total) of medicinal and toilet articles carried in your
household goods and certain smoking materials carried on your
person. For further information contact your mover.
May My Mover Have Agents?
Yes, your mover may have agents. If your mover has agents, your
mover must have written agreements with its prime agents. Your mover
and its retained prime agent must sign their agreements. Copies of
your mover's prime agent agreements must be in its files for a
period of at least 24 months following the date of termination of
each agreement.
What Items Must Be in My Mover's Advertisements?
Your mover must publish and use only truthful, straightforward,
and honest advertisements. Your mover must include certain
information in all advertisements for all services (including any
accessorial services incidental to or part of interstate
transportation). Your mover must require each of its agents to
include the same information in their advertisements. The
information must include the following two pieces of information
about your mover:
(1) Name or trade name of the mover, under whose U.S. DOT number
the advertised service will originate.
(2) U.S. DOT number, assigned by the FMCSA authorizing your
mover to operate. Your mover must display the information as: USDOT
No. (assigned number).
You should compare the name or trade name of the mover and its
U.S. DOT number to the name and USDOT number on the sides of the
truck(s) that arrive at your residence. The names and numbers should
be identical. If the names and numbers are not identical, you should
ask your mover immediately why the names and numbers are not
identical. You should not allow the mover to load your household
goods on its truck(s) until you obtain a satisfactory response from
the mover's local agent. The discrepancies may warn of problems you
will have later in your business dealings with this mover.
How Must My Mover Handle Complaints and Inquiries?
All movers are expected to respond promptly to complaints or
inquiries from you, the customer. Should you have a complaint or
question about your move, you should first attempt to obtain a
satisfactory response from the mover's local agent, the sales
representative who handled the arrangements for your move, or the
driver assigned to your shipment.
If for any reason you are unable to obtain a satisfactory
response from one of these persons, you should then contact the
mover's principal office. When you make such a call, be sure to have
available your copies of all the documents relating to your move.
Particularly important is the number assigned to your shipment by
your mover.
Interstate movers are also required to offer neutral arbitration
as a means of resolving consumer loss or damage disputes involving
loss of, or damage to, household goods. Your mover is required to
provide you with information regarding its arbitration program. You
have the right to pursue court action under 49 U.S.C. 14704 to seek
judicial redress directly and to not participate in your mover's
arbitration program.
All interstate moving companies are required to maintain a
complaint and inquiry procedure to assist their customers. At the
time you make the arrangements for your move, you should ask the
mover's representative for a description of the mover's procedure,
the telephone number to be used to contact the mover, and whether
the mover will pay for such telephone calls. Your mover's procedure
must include the following four things:
(1) A communications system allowing you to communicate with
your mover's principal place of business by telephone.
(2) A telephone number.
(3) A clear and concise statement about who must pay for
complaint and inquiry telephone calls.
(4) A written or electronic record system for recording all
inquiries and complaints received from you by any means of
communication.
Your mover must give you a clear and concise written description
of its procedure. You may want to test the system to see how it
works for you.
Do I Have the Right To Inspect My Mover's Tariffs (Schedules of
Charges) Applicable to My Move?
Federal law requires your mover to advise you of your right to
inspect your mover's tariffs (its schedules of rates or charges)
governing your shipment. Mover tariffs are made a part of the
contract of carriage (bill of lading) between you and the mover. You
may inspect the tariff at the mover's facility, or, upon request,
the mover will furnish you a free copy of any tariff provision
containing the mover's rates, rules, or charges governing your
shipment.
Tariffs may include provisions limiting the mover's liability.
This would generally be described in a section on declaring value on
the bill of lading. A second tariff provision may set the periods
for filing claims. This would generally be described in Section 6 on
the reverse side of a bill of lading. A third tariff provision may
reserve your mover's right to assess additional charges for
additional services performed. For non-binding estimates, another
tariff provision may base charges upon the exact weight of the goods
transported. Your mover's tariff may contain other provisions that
apply to your move. Ask your mover what they might be.
Must My Mover Have an Arbitration Program?
Your mover must have an arbitration program for your use in
resolving disputes concerning loss or damage to your household
goods. You have the right not to participate in the arbitration
program. You may pursue court action under 49 U.S.C. 14704 to seek
judicial remedies directly. Your mover must establish and maintain
an arbitration program with the following eleven minimum elements:
(1) The arbitration program offered to you must prevent your
mover from having any special advantage, because you live or work in
a place distant from the mover's principal or other place of
business.
(2) Before your household goods are tendered for transport, your
mover must provide notice to you of the availability of neutral
arbitration, including the following three things.
(a) A summary of the arbitration procedure.
(b) Any applicable costs.
(c) A disclosure of the legal effects of electing to use
arbitration.
(3) Upon your request, your mover must provide information and
forms it considers necessary for initiating an action to resolve a
dispute under arbitration.
(4) Each person authorized to arbitrate must be independent of
the parties to the dispute and capable of resolving such disputes
fairly and expeditiously. Your mover must ensure the arbitrator is
authorized and able to obtain from you or your mover any material or
relevant information to carry out a fair and expeditious decision
making process.
(5) You must not be required to pay more than one-half of the
arbitration's cost. The arbitrator may determine the percentage of
payment of the costs for each party in the arbitration decision, but
may not make you pay more than half.
(6) Your mover must not require you to agree to use arbitration
before a dispute arises.
(7) You will be bound by arbitration for claims of $5,000 or
less, if you request arbitration.
(8) You will be bound by arbitration for claims of more than
$5,000, only if you request arbitration and your mover agrees to it.
(9) If you and your mover both agree, the arbitrator may provide
for an oral presentation of a dispute by a party or representative
of a party.
(10) The arbitrator must render a decision within 60 days of
receipt of written notification of the dispute, and a decision by an
arbitrator may include any remedies appropriate under the
circumstances.
(11) The 60-day period may be extended for a reasonable period
if you or your mover
[[Page 35105]]
fail to provide information in a timely manner.
Your mover must produce and distribute a concise, easy-to-read,
accurate summary of its arbitration program.
Must My Mover Inform Me About My Rights and Responsibilities Under
Federal Law?
Yes, your mover must inform you about your rights and
responsibilities under Federal law. Your mover must produce and
distribute this document. It should be in the general order and
contain the text of appendix A to 49 CFR part 375.
What Other Information Must My Mover Provide to Me?
Before your mover executes an order for service for a shipment
of household goods, your mover must furnish to you the following
four documents:
(1) The contents of appendix A, ``Your Rights and
Responsibilities When You Move,'' this pamphlet.
(2) A concise, easy-to-read, accurate summary of your mover's
arbitration program.
(3) A notice of the availability of the applicable sections of
your mover's tariff for the estimate of charges, including an
explanation that you may examine the tariff sections or have copies
sent to you upon request.
(4) A concise, easy to read, accurate summary of your mover's
customer complaint and inquiry handling procedures. Included in this
summary must be the following two items:
(a) The main telephone number you may use to communicate with
your mover.
(b) A clear and concise statement concerning who must pay for
telephone calls.
Your mover may, at its discretion, provide additional
information to you.
How Must My Mover Collect Charges?
Your mover must issue you an honest, truthful freight or expense
bill for each shipment transported. Your mover's freight or expense
bill must contain the following 19 items:
(1) Name of the consignor.
(2) Name of the consignees.
(3) Date of the shipment.
(4) Origin point.
(5) Destination points.
(6) Number of packages.
(7) Description of the freight.
(8) Weight of the freight (if applicable to the rating of the
freight).
(9) The volume of the freight (if applicable to the rating of
the freight).
(10) The measurement of the freight (if applicable to the rating
of the freight).
(11) Exact rate(s) assessed.
(12) Disclose the actual rates, charges, and allowances for the
transportation service, when your mover electronically presents or
transmits freight or expense bills to you. These rates must be in
accordance with the mover's applicable tariff.
(13) Indicate whether adjustments may apply to the bill.
(14) Total charges due and acceptable methods of payment.
(15) The nature and amount of any special service charges.
(16) The points where special services were rendered.
(17) Route of movement and name of each mover participating in
the transportation.
(18) Transfer points where shipments moved.
(19) Address where you must pay or address of bill issuer's
principal place of business.
Your mover must present its freight or expense bill to you
within 15 days of the date of delivery of a shipment at its
destination. The computation of time excludes Saturdays, Sundays,
and Federal holidays.
If your mover lacks sufficient information to compute its
charges, your mover must present its freight bill for payment within
15 days of the date when sufficient information does become
available.
May My Mover Collect Charges Upon Delivery?
Yes. Your mover must specify the form of payment acceptable at
delivery when the mover prepares an estimate and order for service.
The mover and its agents must honor the form of payment at delivery,
except when you mutually agree to a change in writing. The mover
must also specify the same form of payment when it prepares your
bill of lading, unless you agree to a change. See also ``May my
mover accept charge or credit cards for my payments?''
You must prepare yourself to pay 10 percent more than the
estimated amount, if your goods are moving under a non-binding
estimate. Every collect-on-delivery shipper must have available 110
percent of the estimate at the time of delivery.
May My Mover Extend Credit to Me?
Extending credit to you is not the same as accepting your charge
or credit card(s) as payment. Your mover may relinquish possession
of freight before you pay its tariff charges, at its discretion.
Your mover may extend credit to you in the amount of the tariff
charges. Your mover must ensure you will pay its tariff charges
within the credit period. If your mover extends credit to you, your
mover becomes like a bank offering you a line of credit, whose size
and interest rate are determined by your ability to pay its tariff
charges within the credit period.
The credit period must begin on the day following presentation
of your mover's freight bill to you. Under Federal regulation, the
standard credit period is 15 days, including Saturdays, Sundays, and
Federal holidays, except your mover may establish its own standard
credit period of up to 30 calendar days. Your mover may also
establish a service charge for extending credit, including a minimum
service charge. Your mover's service charge only applies when your
payments are made after its established standard credit period. For
example, if your mover's established standard credit period is less
than the maximum 30-calendar-day period, your mover may extend
credit including a service charge for the additional time up to the
maximum 30-calendar-day period. If your mover extends such credit,
you may elect to postpone payment, including the service charge
until the end of the extended credit period.
Your mover may establish additional service charges for payments
made after the expiration of the 30-calendar-day period. If your
mover establishes additional service charges, your mover must begin
to compute service charges on the day following the last day of its
standard credit period. If your mover establishes service charges,
your mover must notify you about the following three things:
(1) The only purpose of the service charge is to prevent you
from having free use of the mover's funds.
(2) The service charge encourages your prompt payment.
(3) Your failure to pay within the credit period will require
your mover to determine whether you will comply with the Federal-
household-goods-transportation credit regulations in good faith in
the future before extending credit again.
May My Mover Accept Charge or Credit Cards for My Payments?
Your mover may allow you to use a charge or credit card for
payment of the freight charges. Your mover may accept charge or
credit cards whenever you ship with it under an agreement and tariff
requiring payment by cash or cash equivalents. Cash equivalents are
a certified check, money order, or a cashier's check (a check drawn
by a financial institution--bank, credit union, savings & loan,
etc.--upon itself and signed by an officer of the financial
institution).
If your mover allows you to pay for a freight or expense bill by
charge or credit card, your mover deems such a payment to be
equivalent to payment by cash, certified check, or a cashier's
check. It must note in writing on the order for service and the bill
of lading whether you may pay for the transportation and related
services using a charge or credit card. You should ask your mover at
the time the estimate is written whether it will accept charge or
credit cards at delivery.
The mover must specify what charge or credit cards it will
accept, such as American ExpressTM,
DiscoverTM, MasterCard TM, or
VisaTM. The mover must arrange with you for delivery
during the time when the mover's credit or collection department is
open so the mover may seek approval of the payment by the card
issuer. The mover does not have to make these delivery arrangements
with you when it has equipped its motor vehicle(s) with card
transaction processing machines.
If you cause a charge or credit card issuer to reverse a
transaction, your mover may consider your action tantamount to
forcing your mover to provide an involuntary extension of its
credit.
Subpart C--Service Options Provided
What Service Options May My Mover Provide?
Your mover may provide any service options it chooses. It is
customary for movers to offer several price and service options.
The total cost of your move may increase if you want additional
or special services. Before you agree to have your shipment moved
under a bill of lading providing special service, you should have a
clear understanding with your mover what the
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additional cost will be. You should always consider whether other
movers may provide the services you require without requiring you to
pay the additional charges.
One service option is a Space Reservation. If you agree to have
your shipment transported under a space reservation agreement, you
will pay for a minimum number of cubic feet of space in the moving
van regardless of how much space in the van your shipment actually
occupies.
A second option is Expedited Service. This aids you if you must
have your shipments transported on or between specific dates when
the mover could not ordinarily agree to do so in its normal
operations.
A third customary service option is Exclusive Use of a Vehicle.
If for any reason you desire or require your shipment be moved by
itself on the mover's truck or trailer, most movers will provide
such service.
Another service option is Guaranteed Service on or Between
Agreed Dates. You enter into an agreement with the mover where the
mover provides for your shipment to be picked up, transported to
destination, and delivered on specific guaranteed dates. If the
mover fails to provide the service as agreed, you are entitled to be
compensated at a predetermined amount or a daily rate (per diem)
regardless of the expense you actually might have incurred as a
result of the mover's failure to perform.
Before requesting or agreeing to any of these price and service
options, be sure to ask the mover's representatives about the final
costs you will pay.
Transport of Shipments on Two or More Vehicles
Although all movers try to move each shipment on one truck, it
becomes necessary, at times, to divide a shipment among two or more
trucks. This may occur if your mover has underestimated the cubic
meters of space required for your shipment and it will not all fit
on the first truck. Your mover will pick up the remainder or ``leave
behind'' on a second truck at a later time and this part of your
shipment may arrive at the destination at a later time than the
first truck. When this occurs, your transportation charges will be
determined as if the entire shipment moved on one truck.
If it is important for you to avoid this inconvenience of a
``leave behind,'' be sure your estimate includes an accurate
calculation of the cubic meters required for your shipment. Ask your
estimator to use a ``Table of Measurements'' form in making this
calculation. Consider asking for a binding estimate. A binding
estimate is more likely to be conservative with regard to cubic
meters than a non-binding estimate. If the mover offers space
reservation service, consider purchasing this service for the
necessary amount of space plus some margin for error. In any case,
you would be prudent to ``prioritize'' your goods in advance of the
move so the driver will load the more essential items on the first
truck if some are left behind.
If My Mover Sells Liability Insurance Coverage, What Must My Mover Do?
If your mover provides the service of selling additional
liability insurance, your mover must follow certain regulations.
Your mover, its employees, or its agents, may sell, offer to
sell, or procure additional liability insurance coverage for you for
loss or damage to your shipment, if you release the shipment for
transportation at a value not exceeding 60 cents per pound ($1.32
per kilogram) per article.
Your mover may offer, sell, or procure any type of insurance
policy covering loss or damage in excess of its specified liability.
Your mover must issue you a policy or other appropriate evidence
of the insurance you purchased. Your mover must provide a copy of
the policy or other appropriate evidence to you at the time your
mover sells or procures the insurance. Your mover must issue
policies written in plain English.
Your mover must clearly specify the nature and extent of
coverage under the policy. Your mover's failure to issue you a
policy, or other appropriate evidence of insurance you purchased,
will subject your mover to full liability for any claims to recover
loss or damage attributed to it.
Your mover must provide in its tariffs for the provision of
liability insurance coverage. The tariff must also provide for the
base transportation charge, including its assumption for full
liability for the value of the shipment. This would be in the event
your mover fails to issue you a policy or other appropriate evidence
of insurance at the time of purchase.
Subpart D--Estimating Charges
Must My Mover Estimate the Transportation and Accessorial Charges for
My Move?
We require your mover to prepare a written estimate on every
shipment transported for you. You are entitled to a copy of the
written estimate when your mover prepares it. Your mover must
provide you a written estimate of all charges, including
transportation, accessorial, and advance charges. Your mover's
``rate quote'' is not an estimate. You and your mover must sign the
estimate of charges. Your mover must provide you with a dated copy
of the estimate of charges at the time you sign the estimate.
You should be aware that if you receive an estimate from a
household goods broker, the mover is not required to accept the
estimate. Be sure to obtain a written estimate from the mover if a
mover tells you orally that it will accept the broker's estimate.
Your mover must specify the form of payment it and its
delivering agent will honor at delivery. Payment forms may include,
but are not limited to, cash, a certified check, a money order, a
cashier's check, a specific charge card such as American
ExpressTM, a specific credit card such as
VisaTM, or your mover's own credit.
If your mover provides you with an estimate based on volume that
will later be converted to a weight-based rate, the mover must
provide you an explanation in writing of the formula used to
calculate the conversion to weight. Your mover must specify that the
final charges will be based on actual weight and services. Before
loading your household goods, and upon mutual agreement of both you
and your mover, your mover may amend an estimate of charges. Your
mover may not amend the estimate after loading the shipment.
A binding estimate is an agreement made in advance with your
mover. It guarantees the total cost of the move based upon the
quantities and services shown on your mover's estimate.
A non-binding estimate is what your mover believes the total
cost will be for the move, based upon the estimated weight of the
shipment and the accessorial services requested. A non-binding
estimate is not binding on your mover. Your mover will base the
final charges upon the actual weight of your shipment, the services
provided, and its tariff provisions in effect. You must prepare
yourself to pay 10 percent more than the estimated amount at
delivery.
How Must My Mover Estimate Charges Under the Regulations?
Binding estimates. Your mover may charge you for providing a
binding estimate. The binding estimate must clearly describe the
shipment and all services provided.
When you receive a binding estimate, you cannot be required to
pay any more than the estimated amount at delivery. If you have
requested the mover provide more services than those included in the
estimate, the mover may not demand full payment for those added
services at time of delivery. Instead he must bill for those
services later, as explained below. Such services might include
destination charges often not known at origin (i.e., long carry
charges, shuttle charges, or extra stair carry charges).
A binding estimate must be in writing and a copy must be made
available to you before you move.
If you agree to a binding estimate, you are responsible for
paying the charges due by cash, certified check, money order, or a
cashier's check. The charges are due your mover at the time of
delivery unless your mover agrees, before you move, to extend credit
or to accept payment by a specific charge card such as American
ExpressTM or a specific credit card such as
VisaTM. If you are unable to pay at the time the shipment
is delivered, the mover may place your shipment in storage at your
expense until you pay the charges.
Other requirements of binding estimates include the following
eight elements:
(1) Your mover must retain a copy of each binding estimate as an
attachment to the bill of lading.
(2) Your mover must clearly indicate upon each binding
estimate's face the estimate is binding upon you and your mover.
Each binding estimate must also clearly indicate on its face the
charges shown are the charges to be assessed for only those services
specifically identified in the estimate.
(3) Your mover must clearly describe binding estimate shipments
and all services to be provided.
(4) If, before loading your shipment, your mover believes you
are tendering additional household goods or are requiring additional
services not identified in the binding
[[Page 35107]]
estimate, and you and your mover cannot reach an agreement, your
mover may refuse to service the shipment. If your mover agrees to
service the shipment, your mover must do one of the following three
things:
(a) Reaffirm the binding estimate.
(b) Negotiate a revised written binding estimate listing the
additional household goods or services.
(c) Add an attachment to the contract, in writing, stating both
of you will consider the original binding estimate as a non-binding
estimate. You should read more below. This may seriously affect how
much you may pay for the entire move.
(5) Once your mover loads your shipment, your mover's failure to
execute a new binding estimate or to agree with you to treat the
original estimate as a non-binding estimate signifies it has
reaffirmed the original binding estimate. Your mover may not collect
more than the amount of the original binding estimate, except as
provided in the next two paragraphs.
(6) Your mover may believe additional services are necessary to
properly service your shipment after your household goods are in-
transit. Your mover must inform you what the additional services are
before performing those services. Your mover must allow you at least
one hour to determine whether you want the additional services
performed. Such additional services include carrying your furniture
up additional stairs or using an elevator. If these services do not
appear on your mover's estimate, your mover must deliver your
shipment and bill you later for the additional services.
If you agree to pay for the additional services, your mover must
execute a written attachment to be made an integral part of the bill
of lading and have you sign the written attachment. This may be done
through fax transmissions. You will be billed for the additional
services 30 days following the date of delivery.
(7) If you add additional services after your household goods
are in-transit, you will be billed for the additional services, but
will only be expected to pay the full amount of the binding estimate
to receive delivery. Thirty days after delivery, your mover must
bill you for the balance of any remaining charges. For example, if
your binding estimate shows total charges at delivery should be
$1,000, but your actual charges at destination are $1,500, your
mover must deliver the shipment upon payment of $1,000. The mover
must bill you for the remaining $500 after 30 days after delivery.
(8) Failure of your mover to relinquish possession of a shipment
upon your offer to pay the binding estimate amount constitutes your
mover's failure to transport a shipment with ``reasonable dispatch''
and subjects your mover to cargo delay claims pursuant to 49 CFR
part 370.
Non-Binding Estimates
Your mover is not permitted to charge you for giving a non-
binding estimate.
A non-binding estimate is not a bid or contract. Your mover
provides it to you to give you a general idea of the cost of the
move, but it does not bind your mover to the estimated cost. You
should expect the final cost to be more than the estimate. The
actual cost will be in accordance with your mover's tariffs. Federal
law requires your mover to collect the charges shown in its tariffs,
regardless of what your mover writes in its non-binding estimates.
This is why it is important to ask for copies of the mover's tariffs
before deciding on a mover. The charges contained in mover's tariffs
are essentially the same for the same weight shipment moving the
same distance. If you obtain differing non-binding estimates from
different movers, you must pay only the amount specified in your
mover's tariff. Therefore, a non-binding estimate may have no effect
on the amount that you will ultimately have to pay.
You must prepare yourself to pay 10 percent more than the
estimated amount at the time of delivery. Every collect-on-delivery
shipper must have available 110 percent of the estimate at the time
of delivery. If you order additional services from your mover after
your goods are in transit, the mover will then bill you 30 days
after delivery for any remaining charges.
Non-binding estimates must be in writing and clearly describe
the shipment and all services provided. Any time a mover provides
such an estimate, the amount of the charges estimated must be on the
order for service and bill of lading relating to your shipment. When
you are given a non-binding estimate, do not sign or accept the
order for service or bill of lading unless the amount estimated is
entered on each form when prepared by the mover.
Other requirements of non-binding estimates include the
following nine elements:
(1) Your mover must provide reasonably accurate non-binding
estimates based upon the estimated weight of the shipment and
services required.
(2) Your mover must explain to you that all charges on shipments
moved upon non-binding estimates will be those appearing in your
mover's tariffs applicable to the transportation. If your mover
provides a non-binding estimate of approximate costs, your mover is
not bound by such an estimate.
(3) Your mover must furnish non-binding estimates without charge
and in writing to you.
(4) Your mover must retain a copy of each non-binding estimate
as an attachment to the bill of lading.
(5) Your mover must clearly indicate on the face of a non-
binding estimate, the estimate is not binding upon your mover and
the charges shown are the approximate charges to be assessed for the
services identified in the estimate.
(6) Your mover must clearly describe on the face of a non-
binding estimate the entire shipment and all services to be
provided.
(7) If, before loading your shipment, your mover believes you
are tendering additional household goods or are requiring additional
services not identified in the non-binding estimate, and you and
your mover cannot reach an agreement, your mover may refuse to
service the shipment. If your mover agrees to service the shipment,
your mover must do one of the following two things:
(a) Reaffirm the non-binding estimate.
(b) Negotiate a revised written non-binding estimate listing the
additional household goods or services.
(8) Once your mover loads your shipment, your mover's failure to
execute a new estimate signifies it has reaffirmed the original non-
binding estimate. Your mover may not collect more than 110 percent
of the amount of this estimate at destination.
(9) Your mover may believe additional services are necessary to
properly service your shipment after your household goods are in-
transit. Your mover must inform you what the additional services are
before performing those services. Your mover must allow you at least
one hour to determine whether you want the additional services
performed. Such additional services include carrying your furniture
up additional stairs or using an elevator. If these services do not
appear on your mover's estimate, your mover must deliver your
shipment and bill you later for the additional services.
If you agree to pay for the additional services, your mover must
execute a written attachment to be made an integral part of the bill
of lading and have you sign the written attachment. This may be done
through fax transmissions. You will be billed for the additional
services after 30 days after delivery.
(10) If you add additional services after your household goods
are in-transit, you will be billed for the additional services, but
will only be expected to pay no more than 110 percent of the non-
binding estimate to receive delivery. Thirty days after delivery,
your mover must bill you for the balance of any remaining charges.
For example, if your non-binding estimate shows total charges at
delivery should be $1,000, but your actual charges at destination
are $1,500, your mover must deliver the shipment upon payment of
$1,100. The mover must bill you for the remaining $400 after 30 days
after delivery.
If your mover furnishes a non-binding estimate, your mover must
enter the estimated charges upon the order for service and upon the
bill of lading.
Your mover must retain a record of all estimates of charges for
each move performed for at least one year from the date your mover
made the estimate.
What Payment Arrangements Must My Mover Have in Place To Secure
Delivery of My Household Goods Shipment?
If your total bill is 110 percent of the non-binding estimate or
less, the mover can require payment in full upon delivery. If the
bill exceeds 110 percent of the non-binding estimate, your mover
must relinquish possession of the shipment at the time of delivery
upon payment of 110 percent of the estimated amount. Your mover
should have specified its acceptable form of payment on the
estimate, order for service, and bill of lading. Your mover's
failure to relinquish possession of a shipment after you offer to
pay 110 percent of the estimated charges constitutes its failure to
transport the shipment with ``reasonable dispatch'' and subjects
your mover to your cargo delay claims under 49 CFR part 370.
Your mover must bill for the payment of the balance of any
remaining charges after 30 days after delivery.
[[Page 35108]]
Subpart E--Pickup of My Shipment of Household Goods
Must My Mover Write Up an Order for Service?
We require your mover to prepare an order for service on every
shipment transported for you. You are entitled to a copy of the
order for service when your mover prepares it.
The order for service is not a contract. Should you cancel or
delay your move or if you decide not to use the mover, you should
promptly cancel the order.
If you or your mover change any agreed dates for pick up or
delivery of your shipment, or agree to any change in the non-binding
estimate, your mover may prepare a written change to the order for
service. The written change must be attached to the order for
service.
The order for service must contain the following fifteen
elements:
(1) Your mover's name and address and the U.S. DOT number
assigned to your mover.
(2) Your name, address and, if available, your telephone
number(s).
(3) The name, address, and telephone number of the delivering
mover's office or agent located at or nearest to the destination of
your shipment.
(4) A telephone number where you may contact your mover or its
designated agent.
(5) One of the following three dates and times:
(a) The agreed pickup date and agreed delivery date of your
move.
(b) The agreed period(s) of the entire move.
(c) If your mover is transporting the shipment on a guaranteed
service basis, the guaranteed dates or periods of time for pickup,
transportation, and delivery. Your mover must enter any penalty or
per diem requirements upon the agreement under this item.
(6) The names and addresses of any other motor carriers, when
known, who will participate in interline transportation of the
shipment.
(7) The form of payment your mover will honor at delivery. The
payment information must be the same that was entered on the
estimate.
(8) The terms and conditions for payment of the total charges,
including notice of any minimum charges.
(9) The maximum amount your mover will demand at the time of
delivery to obtain possession of the shipment, when transported on a
collect-on-delivery basis.
(10) The Surface Transportation Board's required released rates
valuation statement, and the charges, if any, for optional valuation
coverage. The STB's required released rates may be increased
annually by your mover based on the Department of Commerce's Cost of
Living Adjustment.
(11) A complete description of any special or accessorial
services ordered and minimum weight or volume charges applicable to
the shipment.
(12) Any identification or registration number your mover
assigns to the shipment.
(13) For non-binding estimated charges, your mover's reasonably
accurate estimate of the amount of the charges, the method of
payment of total charges, and the maximum amount (110 percent of the
non-binding estimate) your mover will demand at the time of delivery
for you to obtain possession of the shipment.
(14) For binding estimated charges, the amount of charges your
mover will demand based upon the binding estimate and the terms of
payment under the estimate.
(15) An indication of whether you request notification of the
charges before delivery. You must provide your mover with the
telephone number(s) or address(es) where your mover will transmit
such communications.
You and your mover must sign the order for service. Your mover
must provide a dated copy of the order for service to you at the
time your mover signs the order. Your mover must provide you the
opportunity to rescind the order for service without any penalty for
a three-day period after you sign the order for service, if you
scheduled the shipment to be loaded more than three days after you
sign the order.
Your mover may provide you with blank or incomplete estimates,
orders for service, bills of lading, or any other blank or
incomplete documents pertaining to the move for informational
purposes. However, your mover is forbidden from requiring you to
sign any blank or incomplete estimates, orders for service, bills of
lading, or any other blank or incomplete documents pertaining to the
move.
Before loading your shipment, and upon mutual agreement of both
you and your mover, your mover may amend an order for service. Your
mover must retain records of an order for service it transported for
at least one year from the date your mover wrote the order.
Your mover must inform you if the mover reasonably expects a
special or accessorial service is necessary to safely transport a
shipment. Your mover must refuse to accept the shipment when your
mover reasonably expects a special or accessorial service is
necessary to safely transport a shipment and you refuse to purchase
the special or accessorial service. Your must make a written note if
you refuse any special or accessorial services that your move
reasonably expects to be necessary.
Must My Mover Write Up an Inventory of the Shipment?
Yes. Your mover must prepare an inventory of your shipment
before loading. If your mover's driver fails to prepare an
inventory, you should write a detailed inventory of your shipment
listing any damage or unusual wear to any items. The purpose is to
make a record of the existence and condition of each item.
After completing the inventory, you should sign each page and
ask the mover's driver to sign each page. Before you sign it, it is
important you make sure the inventory lists every item in the
shipment and the entries regarding the condition of each item are
correct. You have the right to note any disagreement. When your
mover delivers the shipment, if an item is missing or damaged, your
ability to dispute the items lost or damaged may depend upon your
notations.
You should retain a copy of the inventory. Your mover may keep
the original if the driver prepared it. If your mover's driver
completed an inventory, the mover must attach the complete inventory
to the bill of lading as an integral part of the bill of lading.
Must My Mover Write Up a Bill of Lading?
The bill of lading is the contract between you and the mover.
The mover is required by law to prepare a bill of lading for every
shipment it transports. The information on a bill of lading is
required to be the same information shown on the order for service.
The driver who loads your shipment must give you a copy of the bill
of lading before loading your furniture and other household goods.
It is your responsibility to read the bill of lading before you
accept it. It is your responsibility to understand the bill of
lading before you sign it. If you do not agree with something on the
bill of lading, do not sign it until you are satisfied it is
correct.
The bill of lading requires the mover to provide the service you
have requested. You must pay the charges set forth in the bill of
lading.
The bill of lading is an important document. Do not lose or
misplace your copy. Have it available until your shipment is
delivered, all charges are paid, and all claims, if any, are
settled.
A bill of lading must include the following 14 elements:
(1) Your mover's name and address, or the name and address of
the motor carrier issuing the bill of lading.
(2) The names and addresses of any other motor carriers, when
known, who will participate in the transportation of the shipment.
(3) The name, address, and telephone number of the office of the
motor carrier you must contact in relation to the transportation of
the shipment.
(4) The form of payment your mover will honor at delivery. The
payment information must be the same that was entered on the
estimate and order for service.
(5) When your mover transports your shipment under a collect-on-
delivery basis, your name, address, and telephone number where the
mover will notify you about the charges.
(6) For non-guaranteed service, the agreed date or period of
time for pickup of the shipment and the agreed date or period of
time for the delivery of the shipment. The agreed dates or periods
for pickup and delivery entered upon the bill of lading must conform
to the agreed dates or periods of time for pickup and delivery
entered upon the order for service or a proper amendment to the
order for service.
(7) For guaranteed service, the dates for pickup and delivery
and any penalty or per diem entitlements due you under the
agreement.
(8) The actual date of pickup.
(9) The identification number(s) of the vehicle(s) in which your
mover loads your shipment.
(10) The terms and conditions for payment of the total charges
including notice of any minimum charges.
(11) The maximum amount your mover will demand from you at the
time of delivery
[[Page 35109]]
for you to obtain possession of your shipment, when your mover
transports under a collect-on-delivery basis.
(12) The Surface Transportation Board's required released rates
valuation statement, and the charges, if any, for optional valuation
coverage. The STB's required released rates may be increased
annually by your mover based on the Department of Commerce's Cost of
Living Adjustment.
(13) Evidence of any insurance coverage sold to or procured for
you from an independent insurer, including the amount of the premium
for such insurance.
(14) Each attachment to the bill of lading. Each attachment is
an integral part of the bill of lading contract. The following three
items must be added as attachments:
(i) The binding or non-binding estimate.
(ii) The order for service.
(iii) The inventory.
A copy of the bill of lading must accompany your shipment at all
times while in the possession of your mover or its agent(s). When
your mover loads the shipment upon a vehicle for transportation, the
bill of lading must be in the possession of the driver responsible
for the shipment. Your mover must retain bills of lading for
shipments it transported for at least one year from the date your
mover created the bill of lading.
Should I Reach an Agreement With My Mover About Pickup and Delivery
Times?
You and your mover should reach an agreement for pickup and
delivery times. It is your responsibility to determine on what date,
or between what dates, you need to have the shipment picked up and
on what date, or between what dates, you require delivery. It is
your mover's responsibility to tell you if it can provide service on
or between those dates, or, if not, on what other dates it can
provide the service.
In the process of reaching an agreement with your mover, you may
find it necessary to alter your moving and travel plans if no mover
can provide service on the specific dates you desire.
Do not agree to have your shipment picked up or delivered ``as
soon as possible.'' The dates or periods you and your mover agree
upon should be definite.
Once an agreement is reached, your mover must enter those dates
upon the order for service and upon the bill of lading.
Once your goods are loaded, your mover is contractually bound to
provide the service described in the bill of lading. Your mover's
only defense for not providing the service on the dates called for
is the ``Defense of Force Majeure.'' This is a legal term. It means
when circumstances change, were not foreseen, and are beyond the
control of your mover, preventing your mover from performing the
service agreed to in the bill of lading, your mover is not
responsible for damages resulting from its non-performance.
This may occur when you do not inform your mover of the exact
delivery requirements. For example, because of restrictions trucks
must follow in your new city, the mover may not be able to take its
truck down the street of your residence and must find helpers to
provide long carries to carry your furniture and other household
goods down a street where it can drive and park its trucks. Another
example would be if your mover is not aware that your new residence
is on the third floor, requiring six flight stair carries and
workmen that can carry your furniture and household goods up stairs.
Must My Mover Determine the Weight of My Shipment?
Generally yes. If your mover transports your household goods on
a non-binding estimate under the mover's tariffs based upon weight,
your mover must determine the weight of the shipment. If your mover
provided a binding estimate and has loaded your shipment without
claiming you have added additional items or services, the weight of
the shipment will not affect the charges you will pay. If your mover
is transporting your shipment based upon the volume of the shipment
(i.e., a set number of cubic yards or meters), the weight of the
shipment will also not affect the charges you will pay.
Your mover must determine the weight of your shipment before
requesting you pay for any charges dependent upon your shipment's
weight.
Most movers usually have a minimum weight or volume charge for
transporting a shipment. Usually the minimum is the charge for
transporting a shipment of at least 3,000 pounds (1,362 kilograms).
If your shipment appears to weigh less than the mover's minimum
weight, your mover must advise you on the order for service of the
minimum cost before transporting your shipment. Should your mover
fail to advise you of the minimum charges and your shipment is less
than the minimum weight, your mover must base your final charges
upon the actual weight instead of the minimum weight.
How Must My Mover Determine the Weight of My Shipment?
Your mover must weigh your shipment upon a certified scale.
The weight of your shipment must be obtained by using one of two
methods.
Origin weighing--Your mover may weigh your shipment in the city
or area where it loads your shipment. If it elects this option, the
driver must weigh the truck before coming to your residence. This is
called the tare weight. At the time of this first weighing, the
truck may already be partially loaded with one or more other
shipments. This will not affect the weight of your shipment. The
truck should also contain the pads, dollies, hand-trucks, ramps, and
other equipment normally used in the transportation of household
goods shipments.
After loading, the driver will weigh the truck again to obtain
the loaded weight, called the gross weight. The net weight of your
shipment is then obtained by subtracting the tare weight before
loading from the gross weight.
Gross weight-tare weight before loading=net weight
Destination weighing (Also called back weighing)--The mover is
also permitted to determine the weight of your shipment at the
destination after it delivers your load. The fact your mover weighs
your shipment at the destination instead of the origin will not
affect the accuracy of the weight of your shipment. The most
important difference is your mover will not determine the exact
charges on your shipment before it is unloaded.
Destination weighing is done in reverse of origin weighing.
After arriving in the city or area where you are moving, the driver
will weigh the truck. Your shipment will still be on the truck. Your
mover will determine the gross weight before coming to your new
residence to unload. After unloading your shipment, the driver will
again weigh the truck to obtain the tare weight. The net weight of
your shipment will then be obtained by subtracting the tare weight
after delivery from the gross weight.
Gross weight-tare weight after delivery=net weight
At the time of both weighings, your mover's truck must have
installed or loaded all pads, dollies, hand trucks, ramps, and other
equipment required in the transportation of your shipment. The
driver and other persons must be off the vehicle at the time of both
weighings. The fuel tanks on the vehicle must be full at the time of
each weighing. In lieu of this requirement, your mover must not add
fuel between the two weighings when the tare weighing is the first
weighing performed.
Your mover may detach the trailer of a tractor-trailer vehicle
combination from the tractor and have the trailer weighed separately
at each weighing provided the length of the scale platform is
adequate to accommodate and support the entire trailer at one time.
Your mover may use an alternative method to weigh your shipment
if it weighs 3,000 pounds or less (1,362 kilograms or less). The
only alternative method allowed is weighing the shipment upon a
platform or warehouse certified scale before loading your shipment
for transportation or after unloading.
Your mover must use the net weight of shipments transported in
large containers, such as ocean or railroad containers. Your mover
will calculate the difference between the tare weight of the
container (including all pads, blocking and bracing used in the
transportation of your shipment) and the gross weight of the
container with your shipment loaded in the container.
You have the right, and your mover must inform you of your
right, to observe all weighings of your shipment. Your mover must
tell you where and when each weighing will occur. Your mover must
give you a reasonable opportunity to be present to observe the
weighings.
You may waive your right to observe any weighing or re-weighing.
This does not affect any of your other rights you have under Federal
law.
Your mover may request you waive your right to have a shipment
weighed upon a certified scale. Your mover may want to weigh the
shipment upon a trailer's on-board non-certified scale. You should
demand your right to have a certified scale used. The use of a non-
certified scale may cause you to pay a higher final bill for your
move, if the non-
[[Page 35110]]
certified scale does not accurately weigh your shipment. Remember,
certified scales are inspected and approved for accuracy by a
government inspection or licensing agency. Non-certified scales are
not inspected and approved for accuracy by a government inspection
or licensing agency.
Your mover must obtain a separate weight ticket for each
weighing. The weigh master must sign each weight ticket. Each weight
ticket must contain the following six items:
(1) The complete name and location of the scale.
(2) The date of each weighing.
(3) Identification of the weight entries as being the tare,
gross, or net weights.
(4) The company or mover identification of the vehicle.
(5) Your last name as it appears on the Bill of Lading.
(6) Your mover's shipment registration or Bill of Lading number.
Your mover must retain the original weight ticket or tickets
relating to the determination of the weight of your shipment as part
of its file on your shipment.
When both weighings are performed on the same scale, one weight
ticket may be used to record both weighings.
Your mover must present all freight bills with true copies of
all weight tickets. If your mover does not present its freight bill
with all weight tickets, your mover is in violation of Federal law.
Before the driver actually begins unloading your shipment
weighed at origin and after your mover informs you of the billing
weight and total charges, you have the right to demand a re-weigh of
your shipment. If you believe the weight is not accurate, you have
the right to request your mover re-weigh your shipment before
unloading.
You have the right, and your mover must inform you of your
right, to observe all re-weighings of your shipment. Your mover must
tell you where and when each re-weighing will occur. Your mover must
give you a reasonable opportunity to be present to observe the re-
weighings.
You may waive your right to observe any re-weighing, however,
you must waive that right in writing. You may send the written
waiver via fax, e-mail, or any other electronic means. This does not
affect any of your other rights you have under Federal law.
Your mover is prohibited from charging you for the re-weighing.
If the weight of your shipment at the time of the re-weigh is
different from the weight determined at origin, the mover must
recompute the charges based upon the re-weigh weight.
Before requesting a re-weigh, you may find it to your advantage
to estimate the weight of your shipment using the following three-
step method:
1. Count the number of items in your shipment. Usually there
will be either 30 or 40 items listed on each page of the inventory.
For example, if there are 30 items per page and your inventory
consists of four complete pages and a fifth page with 15 items
listed, the total number of items will be 135. If an automobile is
listed on the inventory do not include this item in the count of the
total items.
2. Subtract the weight of any automobile included in your
shipment from the total weight of the shipment. If the automobile
was not weighed separately, its weight can be found on its title or
license receipt.
3. Divide the number of items in your shipment into the weight.
If the average weight resulting from this exercise ranges between 35
and 45 pounds (16 and 20 kilograms) per article, it is unlikely a
re-weigh will prove beneficial to you and could result in you paying
higher charges.
Experience has shown the average shipment of household goods
will weigh about 40 pounds (18 kilograms) per item. If a shipment
contains a large number of heavy items, such as cartons of books,
boxes of tools or heavier than average furniture, the average weight
per item may be 45 pounds or more (20 kilograms or more).
What Must My Mover Do if I Want To Know the Actual Weight or Charges
for My Shipment before Delivery?
If you request notification of the actual weight or volume and
charges upon your shipment, your mover must comply with your request
when it is moving your goods on a collect-on-delivery basis. This
requirement is conditioned upon you supplying your mover with an
address or telephone number where you will receive the
communication. Your mover must make its notification by telephone,
telegram, or in person.
You must receive its notification at least one full 24-hour day
before your mover's delivery, excluding Saturdays, Sundays and
Federal holidays.
Your mover may disregard this 24-hour notification requirement
on shipments subject to one of the following three things:
(1) Back weigh (when your mover weighs your shipment at its
destination).
(2) Pickup and delivery encompassing two consecutive weekdays,
if you agree.
(3) Maximum payment amounts at time of delivery of 110 percent
of the estimated charges, if you agree.
Subpart F--Transportation of My Shipment
Must My Mover Transport the Shipment in a Timely Manner?
Yes, your mover must transport your household goods in a timely
manner. This is also known as ``reasonable dispatch service.'' Your
mover must provide reasonable dispatch service to you, except for
transportation on the basis of guaranteed delivery dates.
When your mover is unable to perform either the pickup or
delivery of your shipment on the dates or during the periods of time
specified in the order for service, your mover must notify you of
the delay by telephone, telegram, or in person, at your mover's
expense. As soon as the delay becomes apparent to your mover, it
must give you notification it will be unable to provide the service
specified in the terms of the order for service.
At the time of your mover's notification of delay, it must
advise you of the dates or periods of time it may be able to pickup
and/or deliver the shipment. Your mover must consider your needs in
its advisement.
Your mover must prepare a written record of the date, time, and
manner of its notification. Your mover must prepare a written record
of its amended date or period for delivery. Your mover must retain
these records as a part of its file on your shipment. The retention
period is one year from the date of notification. Your mover must
furnish a copy of the notification to you by first class mail or in
person if you request a copy of the notice.
Your mover must tender your shipment for delivery upon the
agreed delivery date or within the period specified on the bill of
lading. Upon your request or concurrence, your mover may deliver
your shipment on another day.
The establishment of a delayed pickup or delivery date does not
relieve your mover from liability for damages resulting from your
mover's failure to provide service as agreed. However, when your
mover notifies you of alternate delivery dates, it is your
responsibility to be available to accept delivery on the dates
specified. If you are not available and are not willing to accept
delivery, your mover has the right to place your shipment in storage
at your expense or hold the shipment on its truck and assess
additional charges.
If after the pickup of your shipment, you request your mover to
change the delivery date, most movers will agree to do so providing
your request will not result in unreasonable delay to its equipment
or interfere with another customer's move. However, your mover is
under no obligation to consent to amended delivery dates. Your mover
has the right to place your shipment in storage at your expense if
you are unwilling or unable to accept delivery on the date agreed to
in the bill of lading.
If your mover fails to pick up and deliver your shipment on the
date entered on the bill of lading and you have expenses you
otherwise would not have had, you may be able to recover those
expenses from your mover. This is what is called an inconvenience or
delay claim. Should your mover refuse to honor such a claim and you
continue to believe you are entitled to be paid damages, you may
take your mover to court under 49 U.S.C. 14704. The Federal Motor
Carrier Safety Administration (FMCSA) has no authority to order your
mover to pay such claims.
While we hope your mover delivers your shipment in a timely
manner, you should consider the possibility your shipment may be
delayed and find out what payment you can expect if a mover delays
service through its own fault before you agree with the mover to
transport your shipment.
What Must My Mover Do if It Is Able To Deliver My Shipment More Than 24
Hours Before I Am Able To Accept Delivery?
At your mover's discretion, it may place your shipment in
storage. This will be under its own account and at its own expense
in a warehouse located in proximity to the destination of your
shipment. Your mover may do this if you fail to request or concur
with an early delivery date, and your mover is able to deliver your
shipment more than 24 hours before your specified date or the first
day of your specified period.
If your mover exercises this option, your mover must immediately
notify you of the
[[Page 35111]]
name and address of the warehouse where your mover places your
shipment. Your mover must make and keep a record of its notification
as a part of its shipment records. Your mover has full
responsibility for the shipment under the terms and conditions of
the bill of lading. Your mover is responsible for the charges for
redelivery, handling, and storage until it makes final delivery.
Your mover may limit its responsibility to the agreed delivery date
or the first day of the period of delivery as specified in the bill
of lading.
What Must My Mover Do for Me When I Store Household Goods in Transit?
If you request your mover to hold your household goods in
storage-in-transit (SIT) and the storage period of time is about to
expire, your mover must notify you, in writing, about the four
following items:
(1) The date when storage-in-transit will convert to permanent
storage.
(2) The existence of a nine-month period after the date of
conversion to permanent storage when you may file claims against
your mover for loss or damage occurring to your goods while in
transit or during the storage-in-transit period.
(3) Your mover's liability will end.
(4) Your property will be subject to the rules, regulations, and
charges of the warehouseman.
Your mover must make this notification at least 10 days before
the expiration date of one of the following two periods of time:
(1) The specified period of time when your mover is to hold your
goods in storage.
(2) The maximum period of time provided in its tariff for
storage-in-transit.
Your mover must notify you by facsimile transmission, overnight
courier, e-mail, or certified mail, return receipt requested.
If your mover holds your household goods in storage-in-transit
for a period of time less than 10 days, your mover must notify you
of the same information specified above one day before the
expiration date of the specified time when your goods are to be held
in such storage.
Your mover must maintain a record of all notifications to you as
part of the records of your shipment. Your mover's failure or
refusal to notify you will automatically effect a continuance of
your mover's liability according to the applicable tariff provisions
with respect to storage-in-transit, until the end of the day
following the date when your mover actually gives you notice.
Subpart G--Delivery of My Shipment
May My Mover Ask Me To Sign a Delivery Receipt Purporting To Release It
From Liability?
At the time of delivery, your mover will expect you to sign a
receipt for your shipment. You generally will sign each page of your
mover's copy of the inventory.
Your mover's delivery receipt or shipping document must not
contain any language purporting to release or discharge it or its
agents from liability.
Your mover may include a statement about your receipt of your
property in apparent good condition, except as noted on the shipping
documents.
DO NOT SIGN the delivery receipt if it contains any language
purporting to release or discharge your mover or its agents from
liability. Strike out such language before signing or refuse
delivery if the driver or mover refuses to provide a proper delivery
receipt.
What Is the Maximum Collect-on-Delivery Amount My Mover May Demand I
Pay at the Time of Delivery?
On a binding estimate, the maximum amount is the exact estimate
of the charges. Your mover must specify on the estimate, order for
service, and bill of lading the form of payment acceptable to it
(e.g., a certified check).
On a non-binding estimate, the maximum amount is 110 percent of
the approximate costs. Your mover must specify on the estimate,
order for service, and bill of lading the form of payment acceptable
to it (e.g., cash).
If My Shipment Is Transported on More Than One Vehicle, What Charges
May My Mover Collect at Delivery?
Although all movers try to move each shipment on one truck, it
becomes necessary at times to divide a shipment among two or more
trucks. This frequently occurs when an automobile is included in the
shipment and it is transported on a vehicle specially designed to
transport automobiles. When this occurs your transportation charges
are the same as if the entire shipment moved on one truck.
If your shipment is divided for transportation on two or more
trucks, the mover may require payment for each portion as it is
delivered.
Your mover may delay the collection of all the charges until the
entire shipment is delivered, at its discretion, not yours. When you
order your move, you should ask the mover about its policies in this
respect.
If My Shipment Is Partially Lost or Destroyed, What Charges May My
Mover Collect at Delivery?
Movers customarily make every effort to not lose, damage, or
destroy your items while your shipment is in their possession for
transportation. However, despite the precautions taken, articles are
sometimes lost or destroyed during the move.
In addition to any money you may recover from your mover to
compensate for lost or destroyed articles, you may also recover the
transportation charges represented by the portion of the shipment
lost or destroyed. Your mover may only apply this paragraph to the
transportation of household goods. Your mover may disregard this
paragraph if loss or destruction was due to an act or omission by
you. Your mover must require you to pay any specific valuation
charge due.
For example, if you pack a hazardous material (i.e., gasoline,
aerosol cans, motor oil, etc.) and your shipment is partially lost
or destroyed by fire in storage or in the mover's trailer, your
mover may require you to pay for the full cost of transportation.
Your mover may first collect its freight charges for the entire
shipment, if your mover chooses. At the time your mover disposes of
claims for loss, damage, or injury to the articles in your shipment,
it must refund the portion of its freight charges corresponding to
the portion of the lost or destroyed shipment (including any charges
for accessorial or terminal services).
Your mover is forbidden from collecting, or requiring you to
pay, any freight charges (including any charges for accessorial or
terminal services) when your household goods shipment is totally
lost or destroyed in transit, unless the loss or destruction was due
to an act or omission by you.
How Must My Mover Calculate the Charges Applicable to the Shipment as
Delivered?
Your mover must multiply the percentage corresponding to the
delivered shipment times the total charges applicable to the
shipment tendered by you to obtain the total charges it must collect
from you.
If your mover's computed charges exceed the charges otherwise
applicable to the shipment as delivered, the lesser of those charges
must apply. This will apply only to the transportation of your
household goods.
Your mover must require you to pay any specific valuation charge
due.
Your mover may not refund the freight charges if the loss or
destruction was due to an act or omission by you. For example, you
fail to disclose to your mover your shipment contains perishable
live plants. Your mover may disregard its loss or destruction of
your plants, because you failed to inform your mover you were
transporting live plants.
Your mover must determine, at its own expense, the proportion of
the shipment, based on actual or constructive weight, not lost or
destroyed in transit.
Your rights are in addition to, and not in lieu of, any other
rights you may have with respect to your shipment of household goods
your mover lost or destroyed, or partially lost or destroyed, in
transit. This applies whether or not you have exercised your rights
provided above.
Subpart H--Collection of Charges
Does This Subpart Apply to Most Shipments?
No, this subpart does not apply to most shipments. Most movers
perform COD service subject to the 110 percent rule for non-binding
estimates. Read and understand this subpart only if your mover is
providing a shipment subject to a binding estimate.
How Must My Mover Present Its Freight or Expense Bill to Me?
At the time for payment of transportation charges, your mover
must give you a freight bill identifying the service provided and
the charge for each service. It is customary for most movers to use
a copy of the bill of lading as a freight bill; however, some movers
use an entirely separate document for this purpose.
Except in those instances where a shipment is moving on a
binding estimate, the freight bill must specifically identify each
service performed, the rate per unit for each service, and the total
charges for each service. If this information is not on the freight
bill, DO NOT accept or pay the freight bill.
Movers customarily provide in tariffs the freight charges must
be paid in cash, by
[[Page 35112]]
certified check, or by a cashier's check. When this requirement
exists, the mover will not accept personal checks. At the time you
order your move, you should ask your mover about the form of payment
your mover requires.
Some movers permit payment of freight charges by use of a charge
or credit card. However, do not assume your nationally recognized
charge, credit, or debit card will be acceptable for payment. Ask
your mover at the time you request an estimate. Your mover must
specify the form of payment it will accept at delivery.
If you do not pay the transportation charges at the time of
delivery, your mover has the right, under the bill of lading, to
refuse to deliver your goods. The mover may place them in storage,
at your expense, until the charges are paid. However, the mover must
deliver your goods upon payment of 100 percent of a binding
estimate.
If, before payment of the transportation charges, you discover
an error in the charges, you should attempt to correct the error
with the driver, the mover's local agent, or by contacting the
mover's main office. If an error is discovered after payment, you
should write the mover (the address will be on the freight bill)
explaining the error and request a refund.
Movers customarily check all shipment files and freight bills
after a move has been completed to make sure the charges were
accurate. If an overcharge is found, you should be notified and a
refund made. If an undercharge occurred, you may be billed for the
additional charges due.
On ``to be prepaid'' shipments, your mover must present its
freight bill for all transportation charges within 15 days, from the
date your mover received the shipment. This period excludes
Saturdays, Sundays, and Federal holidays.
On ``collect'' shipments, your mover must present its freight
bill for all transportation charges on the date of delivery, or, at
its discretion, within 15 days, measured from the date the shipment
was delivered at your destination. This period excludes Saturdays,
Sundays, and Federal holidays.
Your mover's freight bills and accompanying written notices must
state the following five items:
(1) Penalties for late payment.
(2) Credit time limits.
(3) Service or finance charges.
(4) Collection expense charges.
(5) Discount terms.
If your mover extends credit to you, freight bills or a separate
written notice accompanying a freight bill or a group of freight
bills presented at one time must state ``You may be subject to
tariff penalties for failure to timely pay freight charges'' or a
similar statement. Your mover must state on its freight bills or
other notices when it expects payment, and any applicable service
charges, collection expense charges and discount terms.
When your mover lacks sufficient information to compute its
tariff charges at its time of billing, your mover must present its
freight bill for payment within 15 days following the day when
sufficient information becomes available. This period excludes
Saturdays, Sundays, and Federal holidays.
Your mover must not extend more credit to you, if you fail to
furnish sufficient information to your mover. Your mover must have
sufficient information to render a freight bill within a reasonable
time after the shipment.
When your mover presents freight bills by mail, it must deem the
time of mailing to be the time of presentation of the bills. The
term ``freight bills,'' as used in this paragraph, includes both
paper documents and billing by use of electronic media such as
computer tapes, disks, or the Internet when the mails (U.S. mail, e-
mail) are used to transmit them.
When you mail acceptable checks or drafts in payment of freight
charges, your mover must deem the act of mailing the payment within
the credit period to be the proper collection of the tariff charges
within the credit period for the purposes of Federal law. In the
case of a dispute as to the date of mailing, your mover must accept
the postmark as the date of mailing.
If I Forced My Mover To Relinquish a Collect-on-Delivery Shipment
Before the Payment of All Charges, How Must My Mover Collect the
Balance?
On ``collect-on-delivery'' shipments, your mover must present
its freight bill for all transportation charges within 15 days,
measured from the date the shipment was delivered at your
destination. This period excludes Saturdays, Sundays, and Federal
holidays.
What Actions May My Mover Take To Collect From Me the Charges Upon Its
Freight Bill?
Your mover must present a freight bill within 15 days (excluding
Saturdays, Sundays, and Federal holidays) of the date of delivery of
a shipment at your destination.
The credit period must be 15 days (including Saturdays, Sundays,
and Federal holidays).
Your mover must provide in its tariffs the following three
things:
(1) A provision automatically extending the credit period to a
total of 30 calendar days for you if you have not paid its freight
bill within the 15-day period.
(2) A provision indicating you will be assessed a service charge
by your mover equal to one percent of the amount of the freight
bill, subject to a $20 minimum charge, for the extension of the
credit period. The mover will assess the service charge for each 30-
day extension that the charges go unpaid.
(3) A provision your mover must deny credit to you, if you fail
to pay a duly presented freight bill within the 30-day period. Your
mover may grant credit to you, at its discretion, when you satisfy
your mover's conditions you will pay all future freight bills duly
presented. Your mover must ensure all your payments of freight bills
are strictly in accordance with Federal rules and regulations for
the settlement of its rates and charges.
Do I Have a Right To File a Claim To Recover Money for Property My
Mover Lost or Damaged?
Should your move result in the loss or damage to any of your
property, you have the right to file a claim with your mover to
recover money for such loss or damage.
You have nine months following either the date of delivery, or
the date when the shipment should have been delivered, to file a
claim. You should file a claim as soon as possible. If you fail to
file a claim within nine months following delivery and later bring a
legal action against the mover to recover the damages, you may not
be able to recover your attorney fees even though you win the court
action.
While the Federal Government maintains regulations governing the
processing of loss and damage claims (49 CFR part 370), it cannot
resolve those claims. If you cannot settle a claim with the mover,
you may file a civil action to recover your claim in court under 49
U.S.C. 14704. You may obtain the name and address of the mover's
agent for service of legal process in your state by contacting the
Federal Motor Carrier Safety Administration. You may also obtain the
name of a process agent via the Internet at http://www.fmcsa.dot.gov
and click on Licensing and Insurance (L&I) section.
In addition, your mover must participate in an Arbitration
Program. The program, described earlier in this pamphlet, provides
you with the opportunity to settle certain types of unresolved loss
or damage claims through a neutral arbitrator. You may find
submitting your claim to arbitration under such a program to be a
less expensive and more convenient way to seek recovery of your
claim. If the mover does not provide you with information about its
arbitration program before you move as it must do, ask the mover for
the details of the program.
Subpart I--Resolving Disputes With My Mover
What May I Do To Resolve Disputes With My Mover?
The Federal Motor Carrier Safety Administration does not help
you settle your dispute with your mover.
Generally, you must resolve your own disputes with your mover.
You enter a contractual arrangement with your mover. You are bound
by each of the following three things:
(1) The terms and conditions you negotiated before your move.
(2) The terms and conditions you accepted when you signed the
bill of lading.
(3) The terms and conditions you accepted when you signed for
delivery of your goods.
You have the right to take your mover to court. We require your
mover to offer you arbitration to settle your disputes with it.
The Federal Motor Carrier Safety Administration does not have
the resources to seek a court injunction on your behalf to obtain
your household goods if your mover is holding your goods
``hostage.''
PART 377--PAYMENT OF TRANSPORTATION CHARGES
0
2. The authority citation for part 377 continues to read as follows:
Authority: 49 U.S.C. 13101, 13301, 13701-13702, 13706, 13707,
and 14101; 49 CFR 1.73.
[[Page 35113]]
Sec. 377.215 [Removed and Reserved]
0
3. Section 377.215 is removed and reserved.
Issued on: June 4, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-14439 Filed 6-10-03; 8:45 am]
BILLING CODE 4910-EX-P