[Federal Register Volume 61, Number 229 (Tuesday, November 26, 1996)]
[Notices]
[Pages 60140-60141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30180]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[No. 41826]
National Association of Freight Transportation Consultants,
Inc.--Petition for Declaratory Order
AGENCY: Surface Transportation Board, DOT.
ACTION: Institution of declaratory order proceeding.
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SUMMARY: The Board is instituting a proceeding under 5 U.S.C. 554(e) to
resolve questions regarding the application of the 180-day shipper
notification provisions of 49 U.S.C. 13710(b)(3)(B).
DATES: Comments by or on behalf of those opposing the positions of the
National Association of Freight Transportation Consultants, Inc.
(NAFTC) or petitioner and the Transportation Consumer Protection
Council (TCPC), including any further comments by the Regular Common
Carrier Conference (RCCC), are due December 26, 1996. Petitioner's
replies and comments from any person desiring to submit comments in
support of its positions are due January 10, 1997.
ADDRESSES: The original and 10 copies of submissions identified as such
and referring to No. 41826 must be sent to: Office of the Secretary,
Case Control Branch, Surface Transportation Board, Washington, DC
20423.
One copy of evidence and arguments by or on behalf of those
opposing the positions of NAFTC and TCPC must be served simultaneously
on their representatives: Donna F. Behme, Executive Director, National
Association of Freight Transportation Consultants, Inc., P.O. Box
21418, Albuquerque, NM 87154-1418; Raymond A. Selvaggio, Augello,
Pezold & Hirschmann, P.C., 120 Main Street, Huntington, NY 11743-6936.
One copy of evidence and arguments by or on behalf of those
opposing the positions of the RCCC must be served simultaneously on its
representative: Kevin M. Williams, Executive Director and General
Counsel, Regular Common Carrier Conference, 211 North Union Street,
Suite 102, Alexandria, VA 22314.
FOR FURTHER INFORMATION CONTACT: Michael Martin, (202) 927-6033, [TDD
for the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: In Carolina Traffic Services of Gastonia,
Inc.--Petition for Declaratory Order, STB No. 41689 (June 7, 1996)
(CTS), we issued a declaratory order answering certain questions
regarding the so-called ``180-day rule'' of 49 U.S.C. 13710. That
provision requires, inter alia, that shippers ``contest the original
bill or subsequent bill within 180 days of the receipt of the bill in
order to have the right to contest such charges.'' 49 U.S.C.
13710(a)(3)(B).1
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\1\ This provision and the companion carrier-notification
provision [49 U.S.C. 13710(a)(3)(A)], which requires carriers to
rebill within 180 days of the original freight bill in order to
collect any amounts in addition to those originally billed and paid,
were enacted in the Transportation Industry Regulatory Reform Act of
1994 (TIRRA), Pub. L. No. 103-311, 206(c)(4), 108 Stat. 1683, 1685
(1994) and reenacted by the ICC Termination Act of 1995 (ICCTA),
Pub. L. No. 104-88, 1103, 109 Stat. 803, 876-77 (1995). Further
background concerning these provisions is set forth in CTS.
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In CTS, we concluded: (1) That the rule applies to all original
freight bills issued on or after August 26, 1994 (date of TIRRA's
enactment), and to rebillings issued on or after January 1, 1996 (the
effective date of ICCTA, which clarified the applicability of the 180-
day rule to rebillings by carriers); (2) that, to perfect its right of
action, a shipper must, in addition to complying with the statute of
limitations on court actions (49 U.S.C. 14705), notify carriers that
they contest a billing or rebilling within 180 days of the contested
billing, but that they need not request a Board determination within
that time period, or at all; and (3) that there is no statutory
prohibition against carriers paying late-contested claims.
On June 17, 1996, NAFTC (which represents the interests of freight
bill auditors for shippers) filed a petition for declaratory order
asking the Board to resolve a number of issues relating to the 180-day
rule. In its petition, NAFTC suggests that we establish a procedural
schedule to permit interested parties to file comments regarding the
issues it raises.
NAFTC asserts that the 180-day rule does not apply to billing
``errors'', but only to billing ``disputes''. It attempts to draw a
distinction between erroneous billings based on factual, arithmetical
or clerical mistakes and disputes over, for example, which of two or
more rates should apply. NAFTC points to the title of section
13710(a)(3) (``Billing disputes'') and relies on legislative history of
TIRRA. It also cites Duplicate Payments of Freight Charges, 350 I.C.C.
513 (1975), in which the ICC ruled that duplicate payments, because
they are made in response to bills issued in error, are not subject to
the statute of limitations on court actions for overcharges.
NAFTC also challenges the Board's holding in CTS that 49 U.S.C.
13710(a)(3)(b) requires a shipper to notify the carrier (rather than
bring an action before the Board) within 180 days in order to perfect
its claim. According to NAFTC, the subsection, when read as a whole,
indicates that the 180-day rule is simply a time limit for filing
challenges before the Board.
NAFTC next contends that the 180-day rule applies only to billings
for transportation that is subject to the tariff filing requirements
administered by the Board. Petitioner also argues that carriers should
be required to accept fax notification of overcharge claims and should
be required to accept such
[[Page 60141]]
claims as long as they are postmarked by the 180th day.
Finally, NAFTC expresses concern that carriers may be engaging in
concerted action by uniformly declining to pay overcharge claims
received after the 180-day period, based on advice from the General
Counsel of the National Motor Freight Traffic Association. It suggests
that such action may constitute a violation of the antitrust
laws.2
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\2\ Athearn Transportation Consultants, Inc.; Sandusky Traffic
Counsellors, Inc.; Traffic Service Bureau, Inc.; Transportation Cost
Control; Audit Branch of Traffic; Scott Traffic Consultants, Inc.;
Industrial Traffic Consultants, Inc.; Carolina Traffic Services of
Gastonia, Inc.; Orchard Supply Hardware; and Robert R. Piper, Ph.D.,
all filed comments in support of the petition. They all raise
arguments similar to those raised by petitioner and express their
view that the statute applies (or should apply) only to disputes
over the level of rates, rather than to ``billing errors''
generally.
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We initially determined to address NAFTC's claims at a voting
conference we had scheduled for September 24, 1996. However, on
September 23, 1996, TCPC filed a statement raising additional issues.
As a result, we removed the matter from the conference agenda, and
decided to ask for comments on the issues raised by petitioner and
TCPC.
TCPC, in its comments, points to what it considers to be a possible
inconsistency between 49 U.S.C. 13710(a)(3)(B), which provides that
shippers must ``contest [a carrier's] original bill or subsequent bill
within 180 days of the receipt of the bill in order to have the right
to contest such charges,'' and certain applicable limitations
provisions. In particular, it notes that 49 U.S.C. 14705(b) allows a
shipper to ``begin a civil action to recover overcharges within 18
months after the claim accrues,'' or within three years after the claim
accrues if it is against a carrier providing transportation subject to
the jurisdiction of the Board and the Secretary under Chapter 135 of
Title 49 and the shipper has elected to file a complaint under 49
U.S.C. 14704(c)(1), and that 49 U.S.C. 14705(d) extends those
limitations periods ``if a written claim is given to the carrier within
those limitation periods.'' Therefore, according to TCPC, the 180-day
rule should not be read--as we read it in CTS--to disallow all claims
for overcharges as to bills that are not contested within 180 days of
the date of the bill. Rather, its view is that the 180-day rule applies
only to unpaid freight bills; once a bill is paid, the only limitations
or conditions on a shipper's subsequent challenge to the charges are
those embodied in the provisions of 49 U.S.C. 14705 (b) and (d).3
Although we are not certain that we share TCPC's logic in
distinguishing, for purposes of the 180-day rule, between unpaid and
paid bills, or overcharges in general and unpaid bills in particular,
we seek comment on it.
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\3\ Although not directly at issue in this proceeding, we note
an apparent technical error in the statute. Section 14704(c)(1)
authorizes a person to ``bring a civil action under subsection (b)
[of section 14704] to enforce liability against a carrier or broker
providing transportation subject to jurisdiction under chapter
135.'' As codified, subsection (b) refers only to tariff
overcharges, while the provision allowing recovery of damages from
carriers is contained in section 14704(a)(2) (as to which the
statute does not expressly authorize a civil action). Both the House
and Senate bills (H.R. 2539 and S. 1396) that became the ICC
Termination Act of 1995, however, placed the damages provision in
subsection (b)(2), as to which the statute does authorize a civil
action. Subsection (b)(2), as passed by both Houses, reads as
follows:
A carrier or broker providing transportation or service subject
to jurisdiction under chapter 135 of this title is liable for
damages sustained by a person as a result of an act or omission of
that carrier or broker in violation of this part.
Thus, as enacted by Congress, section 14704(c)(1) authorized
civil actions both for damages and for charges exceeding the tariff
rate. Notwithstanding the fact that section 14704(b)(2) was
misplaced [having been codified as section 14704(a)(2)], in our
opinion, section 14704(c)(1) was intended to authorize a person to
bring a civil action against a carrier or broker for damages
sustained by that person as a result of any act or omission of the
carrier in violation of Part B, Subchapter IV, of Title 49.
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TCPC raises two other issues in addition to the matters raised by
NAFTC. First, it asserts that 49 U.S.C. 13710(a)(3)(A)'s requirement
that a carrier must rebill within 180 days in order to collect
additional charges does not bar a carrier from seeking to collect its
originally-billed rates at any time before the expiration of the 18-
month statute of limitations contained in 49 U.S.C. 14705(a). We
believe that the plain language of the statute supports TCPC's
conclusion. However, interested parties may also comment on this
question, should they desire to do so. Second, TCPC contends that, even
if the 180-day rule were deemed to bar overcharge claims contested more
than 180 days after receipt of a bill, it could not apply to duplicate
payment claims, because those claims seek recovery of a second payment
made on an uncontested freight bill. Although our decision in CTS
reached essentially that same conclusion, we do not preclude commentors
from addressing that issue further.
Finally, we note that on October 22, 1996, the RCCC filed comments
essentially supporting our decision in CTS, and responding to the
comments of NAFTC and others.4 First, it contends that we should
reaffirm our holding that the 180-day rule applies broadly to all
billing disputes, including those arising from errors or disputes
involving challenges to the reasonableness or applicability of the
rate. Second, it asserts that the 180-day rule is not a time limit for
bringing disputes before the Board, but applies to any effort to
contest a bill. Third, it argues that the 180-day rule applies to all
billings, not just those for transportation that is subject to the
tariff filing requirements administered by the Board. Fourth, it
challenges TCPC's view that the 180-day rule applies only to unpaid
freight bills. Finally, it agrees with NAFTC and with our view, as set
forth in CTS, that carriers and shippers may mutually agree to waive
the 180-day rule, but it asserts that the parties must do so expressly
and in writing.
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\4\ On November 7, 1996, the American Trucking Associations,
Inc., filed a letter supporting the comments of RCCC.
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Despite its general concurrence with our CTS ruling, RCCC believes
it appropriate that we address the issues raised by NAFTC and the other
commentors. It suggests that the public be given an opportunity to
comment prior to such a decision.
The petition will be granted and a declaratory order proceeding
instituted. Opponents of the positions taken by NAFTC and TCPC,
including RCCC, will be permitted to file comments on the issues
presented, and NAFTC and TCPC, and any other party supporting their
positions, will be permitted to file reply comments.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. A declaratory order proceeding is instituted to consider the
issues raised in this proceeding.
2. Comments by or on behalf of opponents of the positions of NAFTC
and TCPC, including any further comments by RCCC, are due December 26,
1996.
3. Petitioner's and TCPC's replies and any comments from other
interested persons are due January 10, 1997.
Decided: November 14, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-30180 Filed 11-25-96; 8:45 am]
BILLING CODE 4915-00-P
