[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Rules and Regulations]
[Pages 2543-2545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-579]
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INTERSTATE COMMERCE COMMISSION
49 CFR Parts 1002, 1011, and 1130
[Ex Parte No. MC-219]
Implementation of Section 4 of the Negotiated Rates Act of 1993
AGENCY: Interstate Commerce Commission.
ACTION: Adoption of final rules.
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SUMMARY: The Commission is adopting final rules to implement section 4
of the Negotiated Rates Act of 1993. These rules provide a mechanism
for obtaining Commission review of motor carrier and shipper
resolutions of overcharge and undercharge claims resulting from
incorrect tariff provisions or billing errors arising from the
inadvertent failure to properly and timely file and maintain agreed-
upon rates in compliance with 49 U.S.C. 10761 and 10762.
EFFECTIVE DATE: The rules are effective February 9, 1995.
FOR FURTHER INFORMATION CONTACT: Lawrence C. Herzig, (202) 927-5180.
[TDD for the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: By a notice of proposed rulemaking (NPR) in
Ex Parte No. MC-219, Implementation of Section 4 of the Negotiated
Rates Act (not printed), served March 4, 1994, and published at 59 FR
11240, March 10, 1994, we proposed rules which would implement section
4 of the Negotiated Rates Act of 1993 (NRA), Pub. L. No. 103-180. The
NPR proposed a mechanism for obtaining Commission review of motor
carrier and shipper resolutions of overcharge and undercharge claims.
These claims result from incorrect tariff provisions or billing errors
arising from the inadvertent failure to properly and timely file and
maintain agreed-upon rates in compliance with 49 U.S.C. 10761 and
10762.
The NPR proposed two alternate methods of settlement. Under the
first method, a petition to depart from the filed rate would be filed
which would become equivalent to an order of the Commission after 45
days if it was not protested or investigated; the second method would
require a formal order to be issued in all instances, whether or not
there was a protest or investigation. The NPR also proposed standards
for the information required to be included in a petition to depart
from the filed rate, and set a filing fee of $70.
Nine comments were received. In response to these comments, we are
modifying the information required to be included in a petition, and we
will permit either a carrier or a shipper to file a petition. We will
also adopt the first method of settlement and filing fees of $40 and
$80, depending on the amount involved in the petition.
Consolidated Freightways Corporation of Delaware states that the
proposed rules are too burdensome in requiring written Commission
orders in all cases, prefiling of the petitions for relief, and a
docketing fee on insignificant amounts. Also, it is concerned that the
proposed rules do not clarify that multiple tariff errors may be
resolved by a single filing. The final rules will not require an order
on any uncontested petition. Also, while each petition should encompass
only one shipper or one consignee, it can include multiple tariff
errors. However, we will require payment of a fee for all petitions.
D&J Associates, a freight transportation consulting firm, is
concerned that the proposed rules apply only to publishing errors and
not to billing errors and overcharge claims based on published and
timely filed rates. In this regard section 4 of the NRA is very clear;
it applies only to overcharge and undercharge claims resulting from
incorrect tariff provisions or billing errors arising from the
inadvertent failure to properly and timely file and maintain agreed
upon rates. Thus, the concerns of D & J Associates need not be
addressed further.
The National Industrial Transportation League (NITL) states that
the proposed procedures are too complex and formalistic. First, it
argues that they will prevent the parties from quickly and efficiently
resolving paperwork errors. We agree, and will simplify the
requirements for information to be included in each petition. Also,
NITL is concerned that any private party, even though not a party to
the transportation at issue, could protest petitions. We do not
consider this to be a significant problem. The right of any interested
party to protest a petition has been part of the rail special docket
procedures for a number of years, without causing any problems.
The Transportation Brokers Conference of America generally endorses
the proposed rules. However, it favors the method whereby an
uncontested petition automatically becomes an order of the Commission
after 45 days. We are adopting this method in the final rules.
The National Motor Freight Traffic Association, which publishes the
National Motor Freight Classification on behalf of its member carriers,
generally supports the proposed rules. However, it suggests that a
notice should be published by the Commission when a petition concerning
classification matters is investigated on the Commission's own motion
or is protested. We consider this publication to be unnecessary.
Petitions will concern tariff publishing errors or the failure to
publish agreed-upon rates, covering primarily discounts or
[[Page 2544]] commodity rates and not classification matters.
Baldor Electric Company, GAF Building Materials Corp. and W.R.
Grace Company filed consolidated comments. These firms assert that
shippers should be allowed to initiate tariff reconciliation
procedures. We agree, and are amending the rules to this effect. The
commenters also believe that the responsibility for serving the
petition is unclear. We have amended the regulations to show that the
party who files the petition has the responsibility to serve all the
parties. These three corporations also argue that the Commission should
adopt the second method of reconciliation by issuing an order, and that
the procedures should encompass contract carriage. We disagree. To
expedite dispute resolution and in light of our limited resources, we
will permit uncontested and uninvestigated petitions to become orders
of the Commission after 45 days. The contract carriage issue does not
lie because contract carriage does not involve filed tariffs.
National Small Shipments Traffic Conference, Inc., considers that
the requirements for the information proposed to be contained in each
petition are too burdensome. It also favors permitting the petitions to
become orders of the Commission after 45 days. We agree in both
instances and the final rules respond to both concerns.
The Petroleum Marketing Association of America argues that we
should adopt a single-page standardized form for the petitions. We do
not consider this necessary. The Association also argues that there
should be no fee, or at most a nominal fee for filing the petitions. We
are required to assess a fee based on actual cost for services rendered
to the public. The fees adopted here are based on the average cost of
processing similar applications.
Roadway Services, Inc., a common carrier, is concerned, as is D & J
Associates, that the rules not be applied to pure billing errors. We
have disposed of this issue in connection with the comments of D & J
Associates discussed previously. Also, Roadway indicates that the
information required in the proposed 10-step procedures is too complex
and burdensome. We agree and in the final rules have significantly
reduced the amount of required information. Roadway also believes that
nominal claims ($1,000 or less) should be settled without our
involvement. We disagree. We do not think that the adopted rules are
burdensome, especially since we would permit multiple claims involving
one shipper or consignee to be consolidated.
We note that, because it substantially eliminated tariff filing
requirements for independently determined rates, enactment of the
Transportation Industry Regulatory Reform Act has substantially reduced
the need for the remedy authorized by section 4 of the NRA and our
proposed regulations. In the past few months we have received fewer
than 15 requests for adjustments, and these requests primarily involve
one motor carrier. Nevertheless, we expect that, as filed tariff
provisions are reviewed, these requests will continue at the rate of
one or two per month for some time. Also, because it is possible that
tariff errors will be made in collectively set tariffs, we may receive
requests pertaining to rate bureau tariffs.
We believe that the simplified regulations adopted here will allow
efficient processing of section 4 petitions by the Commission without
subjecting petitioners to undue burdens. Actual handling of the
petitions will be by our Special Docket Board. The filing fees of $40
for petitions involving $25,000 or less and $80 for petitions involving
more than $25,000 correspond to the fees currently in place for rail
special dockets.
Environmental Statement
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Regulatory Flexibility Certification
Pursuant to 5 U.S.C. 605(b), we conclude that adoption of these
rules will not have a significant economic impact on a substantial
number of small entities. The economic impact will be minimal because
the rules merely provide a simple, voluntary method to resolve certain
billing problems that are likely to arise in only a small proportion of
the shipments transported by the motor carrier industry. Thus, the
economic impact is unlikely to be significant within the meaning of the
Regulatory Flexibility Act.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
information, User fees.
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).
49 CFR Part 1130
Administrative practice and procedure.
Decided: December 21, 1994.
By the Commission, Chairman McDonald, Vice Chairman Morgan,
Commissioners Simmons and Owen.
Vernon A. Williams
Secretary.
For the reasons set forth in the preamble, title 49, chapter X,
parts 1002, 1011 and 1130 are amended as set forth below.
PART 1002--FEES
1. The authority citation for part 1002 continues to read as
follows:
Authority: 5 U.S.C. 552(a)(4)(A), 5 U.S.C. 553, 31 U.S.C. 9701
and 49 U.S.C. 10321.
2. In Sec. 1002.2(f), in the table, a new No. 81 is added to read
as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
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Type of proceeding Fee
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(81) Tariff reconciliation petitions from motor common
carriers:
(i) Petitions involving $25,000 or less...................... $40
(ii) Petitions involving over $25,000........................ 80
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* * * * *
PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY
3. The authority citation for part 1011 continues to read as
follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 10301, 10302,
10304, 10305, 10321, 10762.
4. Section 1011.6(e) is revised to read as follows:
Sec. 1011.6 Employee boards.
* * * * *
(e) Special Docket Board. Disposition of special docket and tariff
reconciliation proceedings under 49 CFR 1130.2(e), (f) and (g).
* * * * *
PART 1130--INFORMAL COMPLAINTS
5. The authority citation for part 1130 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 10321, 10707 and
11712.
6. In Sec. 1130.2, paragraph (f) is amended by adding the words
``or tariff reconciliation petition'' after the word ``petition'' in
the parenthetical phrase in the first sentence and by adding the
[[Page 2545]] words ``or tariff reconciliation'' after the words
``Special Docket'' in the second sentence, and by adding a new
paragraph (g) to read as follows:
Sec. 1130.2 When damages sought.
* * * * *
(g) Tariff reconciliation proceedings for motor common carriers--
(1) Petitions to waive collection or permit payment.
Pursuant to 49 U.S.C. 11712, subject to Commission review and
approval, motor common carriers (other than household goods carriers)
and shippers may resolve, by mutual consent, overcharge and undercharge
claims resulting from incorrect tariff provisions or billing errors
arising from the inadvertent failure to properly and timely file and
maintain agreed-upon rates, rules or classifications in compliance with
49 U.S.C. 10761 and 10762. Under section 11712, the Commission may
approve any departure from the filed rate when the shipper and carrier
agree, and the departure is needed for the reason(s) stated in section
11712. Petitions for appropriate authority may be filed by either the
carrier, shipper or consignee on the Commission's tariff reconciliation
docket by submitting a letter of intent to depart from the filed rate.
The petitions will be deemed the equivalent of an informal complaint
and answer admitting the matters stated in the petition. Petitions
shall be sent to the Special Docket Board, Interstate Commerce
Commission, Washington, DC 20423. The petitions shall contain, at a
minimum, the following information:
(i) The name(s) and address(es) of the payer(s) of the freight
charges;
(ii) The name(s) of the carrier(s) involved in the traffic;
(iii) An estimate of the amount(s) involved;
(iv) The time period when the shipment(s) involved were delivered
or tendered for delivery;
(v) A general description of the point(s) of origin and destination
of the shipment(s);
(vi) A general description of the commodity(ies) transported;
(vii) A statement certifying that the carrier(s) and shipper(s)
participating in the shipment(s) or the payer(s) of the freight charges
concur(s) with the intent to depart from the filed rate; and
(viii) A brief explanation of the incorrect tariff provision(s) or
billing error(s) causing the request to depart from the filed rate.
(2) Public notice and protest. Tariff reconciliation petitions
(letters of intent) shall be served on all parties named in the
petition by the party who files the petition and will be made available
by the Commission for public inspection in the Special Docket Board
Public File, Interstate Commerce Commission, Washington, DC 20423. Any
interested person may protest the granting of a petition by filing a
letter of objection with the Special Docket Board within 30 days of
Commission receipt of the petition. Letters of objection shall identify
the tariff reconciliation proceeding, shall clearly state the reasons
for the objection, and shall certify that a copy of the letter of
objection has been served on all parties named in the petition. The
Commission may initiate an investigation of the petition on its own
motion.
(3) Uncontested petitions. If a petition is not contested, and if
the Commission does not initiate an investigation of the petition on
its own motion, approval is deemed granted without further action by
the Commission, effective 45 days after Commission receipt of the
petition.
(4) Contested petitions. If a petition is contested or the
Commission initiates an investigation of the petition on its own
motion, 15 days will be allowed for reply. The 15-day period will
commence on the date of service of the objections or, if the Commission
initiates an investigation on its own motion, on the date of service of
the decision initiating the investigation. After the period for reply
has expired, the Commission will issue a decision approving or
disapproving the petition, or requesting further submissions from the
parties, and then will issue a decision based on the further
submissions.
[FR Doc. 95-579 Filed 1-9-95; 8:45 am]
BILLING CODE 7035-01-P