[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5625]
[[Page Unknown]]
[Federal Register: March 10, 1994]
=======================================================================
-----------------------------------------------------------------------
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 (ICC).
ACTION: Notice of proposed rules.
-----------------------------------------------------------------------
SUMMARY: The Commission is proposing regulations to implement section 4
of the Negotiated Rates Act of 1993. The proposed regulations would
establish a mechanism for obtaining ICC review and approval for motor
carriers (other than household goods carriers) and shippers to resolve,
by mutual consent, overcharge and undercharge claims resulting from
incorrect tariff provisions or billing errors arising from 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.
DATES: Comments are due on April 11, 1994.
ADDRESSES: Send comments (an original and 10 copies) referring to [Ex
Parte No. MC-219] to: Interstate Commerce Commission, Office of the
Secretary, Case Control Branch, Washington, DC 20423.
FOR FURTHER INFORMATION CONTACT: Larry Herzig or James Manning (202)
927-5180. TDD for hearing impaired: (202) 927-5721.
SUPPLEMENTARY INFORMATION: Section 4 of the Negotiated Rates Act of
1993 (Pub. L. 103-180), to be codified at 49 U.S.C. 11712, provides
that:
Subject to Commission review and approval, motor common carriers
subject to the jurisdiction of the Commission * * * [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 * * * 49 U.S.C. 11712(a).
Under this language, the Commission may approve a departure from
the filed rate when the shippers and carriers agree, and the departure
is needed to settle claims resulting from incorrect tariff provisions
or billing errors arising from the carrier's inadvertent failure to
properly and timely file and maintain agreed upon rates, rules, or
classifications.1
---------------------------------------------------------------------------
\1\Carriers are otherwise required by law to collect only the
filed rate. Where the carrier has collected a rate higher than the
applicable filed rate, and the filed rate is the rate the parties
intended, the carrier may continue, as it would prior to the NRA, to
repay the excess amount without recourse to the Commission. Carriers
do not require court or Commission approval when merely conforming
to that requirement.
---------------------------------------------------------------------------
A shipper might consent to waive carrier payment of overcharges if,
for example, the charges collected at the time of shipment were the
charges the shipper had agreed to pay, and later the parties determined
that a lower rate was in fact the applicable filed rate.2
Similarly, a carrier might consent to waive undercharges where the
applicable filed rate is higher than the rate the parties had intended.
For example, the carrier might have inadvertently failed to file the
rate it had negotiated and intended to apply. In other cases, the filed
tariff provision may have been incorrect; for example, the commodity
description might not be sufficiently inclusive or the shipment origin
might be described as within a commercial zone when it is actually
several miles outside the zone.3
---------------------------------------------------------------------------
\2\``Overcharge'' has traditionally meant the amount by which
the collected rate exceeds the legally applicable filed rate. See 49
U.S.C. 11706(b) and 11705(b)(1).
\3\In some cases where there are incorrect tariff provisions or
an inadvertent carrier failure to properly and timely file and
maintain the agreed upon rates, rules, or classifications, the
shipper may have already paid charges that were based on a higher
rate than the one the parties had intended. In this situation, the
proposed rules would permit carriers to pay back the excess amounts.
---------------------------------------------------------------------------
To implement the provisions of Section 11712(a), we are proposing
rules that are similar to our Special Docket rules at 49 CFR 1130.2(e),
which allow rail and water carriers to waive collection of undercharges
or pay reparations for similar reasons.4 These proposed motor
``Tariff Reconciliation'' rules provide a process that will in most
cases require the carrier to file only a letter of intent and an
appropriate filing fee. (If a protest is filed or the Commission
initiates an investigation on its own motion, the carrier could reply.)
Following the protest period and Commission review, the Commission will
issue an order either approving or disapproving the agreement.
---------------------------------------------------------------------------
\4\Unlike the rail rules, the proposed rules for motor carriers
do not provide for the tolling of a statute of limitations. The
reason is that for proceedings involving motor carriers, the statute
of limitations can be tolled only by the filing of a court (not a
Commission) action. 49 U.S.C. 11706(a), 11706(b), and 11706(c)(2).
Since the section 11706 limitations periods apply only to civil
actions, not to matters brought to the Commission under section
11712, the Commission proposes to accept letters of intent for motor
shipments without regard to the dates of the shipments. This will
allow carriers to adjust their charges even after the time for civil
actions has passed, so as to avoid exposure to penalties for
departure from the filed rate. See 18 U.S.C. 3282 (setting a five
year period for enforcement actions against carriers) and 49 U.S.C.
11902 (six years for actions against shippers who have received
rebates).
---------------------------------------------------------------------------
The letter of intent must describe the action intended (i.e.,
departure from the filed rate). While we are not proposing any
particular format for these letters, they must contain, at a minimum,
the following information:
1. The name(s) and address(es) of the payer(s) of the freight
charges;
2. The name(s) of the carrier(s) involved in the traffic;
3. The amount(s) involved;
4. The tariff authority(ies) for the charged and sought rates;
5. The date(s) when the shipment(s) involved were delivered or
tendered for delivery;
6. The point(s) of origin and destination of the shipment(s) and the
route(s) of movement;
7. The commodity(ies) transported;
8. A statement certifying that the carrier(s) participating in the
shipment(s) or the payer(s) of the freight charges (if waiver of
overcharge is involved) concur(s) with the intent to depart from the
filed rate;
9. A brief explanation of the incorrect tariff provision(s) or
billing error(s) causing the request to depart from the filed rate;
and
10. The reason(s) why the Commission should approve the proposed
resolution.
Letters of intent would be made available for public inspection in
the Special Docket Board Public File, Room 4313, at our offices in
Washington, DC. Letters of objection may be filed within 30 days of the
filing of the petition. Following filing of the letter of intent, the
proposed rules would provide separate procedures for the processing of
uncontested and contested cases. With respect to uncontested petitions
(letters of intent) on which the Commission does not initiate a formal
investigation the Commission proposes two alternative procedures and
requests comments from interested parties as to which procedure the
Commission should adopt.
One procedure would adapt the Special Docket procedures. Under
these procedures, objections could be lodged against a petition for a
period of 30 days following its filing. If none were received and if by
the 45th day following the filing date of the petition the Commission
did not institute an investigation on its own motion, the petition
would be considered to have been approved by the Commission. This would
be consistent with the Special Docket Procedures where, unless
objections are filed within 45 days after a petition is filed, the
petition is thereafter considered to be ``an order of the Commission
authorizing the action contemplated in the petition.'' See 49 CFR
1130.2(e)(4). Under an alternative procedure for processing uncontested
petitions, where the Commission decides not to investigate, the
Commission would issue an order, through its Special Docket Board
either approving or disapproving the petition.
Both procedures would meet section 11712's requirement for
Commission ``review and approval'' of the consensual resolution 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, rules, or
classifications by providing for careful Commission monitoring to
assure that the new process is not misused or abused. Both procedures
would do this by providing sufficient time for Commission consideration
of each petition and the opportunity for a formal Commission
investigation. The procedures differ in whether a final order will be
issued granting approval of a petition not investigated by the
Commission in an uncontested case. Under these circumstances, the first
procedure would assure parties of a resolution of their case within 45
days. The second procedure would assure receipt of a written order
confirming approval of a petition. This would also be accomplished in a
short time, but the rules would not establish a standard deadline. In
proposing these rules, the Commission notes that departures from the
filed rate are not to be usual or expected activities. For any petition
approved, under either of the procedures described above, or the other
procedures proposed for contested and investigated cases, the claims to
overcharges or undercharges would then be deemed to be waived (and,
where refunds are involved, the carrier could then return to the
shipper the excess amounts already collected).
If a letter is contested, or if the Commission decides on its own
motion to investigate a particular case, carriers would not be allowed
to take any action until the case is reviewed by the Special Docket
Board and an appropriate order either granting or denying the
application is issued. Carriers may file replies if objections are
filed, or if an investigation is initiated on the Commission's own
motion.
We are proposing a filing fee of $70.00. This is the same as the
current filing fee of $70.00 under the rail/water Special Docket letter
of intent procedures, and seems appropriate because each procedure
requires similar processing.
Unlike the rail/water Special Docket procedures, the proposed rules
would not require carriers to notify the Commission that the proposed
transaction has been consummated. We see no need for notification, as
carriers can be assumed to consummate the transactions for which they
seek agency approval.
Public comment is invited on the scope of application of the
proposed rules, the appropriateness of the letter of intent
requirements, the alternative procedures for uncontested petitions not
investigated by the Commission, the level of the fee, and on all other
aspects of the proposed rules. To obtain a copy of the decision, write
to, call, or pick up in person from: Office of the Secretary, room
2215, Interstate Commerce Commission, Washington, DC 20423. Telephone:
(202) 927-7428. [Assistance for the hearing impaired is available
through TDD services (202) 927-5721.]
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 our proposed action
in this proceeding would not have a significant economic impact on a
substantial number of small entities. The economic impact would be
minimal because the proposed 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: March 4, 1994.
By the Commission: Chairman McDonald, Vice Chairman Phillips,
Commissioners Simmons and Philbin. Commissioner Philbin dissented.
Sidney L. Strickland, Jr.,
Secretary.
For the reasons set forth in the preamble, Title 49, Chapter X,
parts 1002, 1011 and 1130 are proposed to be 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) * * *
------------------------------------------------------------------------
Type of proceedings Fees
------------------------------------------------------------------------
(81) Tariff reconciliation petitions from motor common
carriers..................................................... $70
------------------------------------------------------------------------
* * * * *
PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY
3. The authority citation for part 1011 continues to read as
follows:
Authority: 49 U.S.C. 10301, 10302, 10304, 10305, 10321; 31
U.S.C. 9701; 5 U.S.C. 553.
4. Section 1011.6(e) is proposed to be 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 proposed to be 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 proposed to be revised by
adding the words ``or tariff reconciliation petition'' after the word
``petition'' in the parenthetical phrase in the first sentence and by
adding the 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 a departure from the filed rate when the shipper and carrier
agree, and the departure is needed to settle claims resulting from
incorrect tariff provisions or billing errors arising from the
carrier's inadvertent failure to properly and timely file and maintain
agreed upon rates, rules, or classifications. Petitions for appropriate
authority should be filed by the carrier in the Commission's tariff
reconciliation docket by submitting a letter of intent to depart from
the filed rate. Copies of the petitions must be served on all parties
named in the petitions. 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) The amount(s) involved;
(iv) The tariff authority(ies) for the charged and sought rate;
(v) The date(s) when the shipment(s) involved were delivered or
tendered for delivery;
(vi) The point(s) of origin and destination of the shipment(s) and
the route(s) of movement;
(vii) The commodity(ies) transported;
(viii) A statement certifying that the carrier(s) participating in
the shipment(s) or the payer(s) of the freight charges (if waiver of
overcharges is involved) concur(s) with the intent to depart from the
filed rate;
(ix) A brief explanation of the incorrect tariff provision(s) or
billing error(s) causing the request to depart from the filed rate; and
(x) The reason(s) why the Commission should approve the proposed
resolution.
(2) Public notice and protest. Tariff reconciliation petitions
(letters of intent) shall be served on all parties named in the
petition and will be made available by the Commission for public
inspection in the Special Docket Board Public File Room, Room 4313,
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.
(As to uncontested petitions, not investigated by the Commission
two alternative rules are offered for comment. Comments from interested
parties are requested on which procedure the Commission should adopt.)
(First possible rule)
(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. (Second possible rule)
(3) Uncontested petitions. If a petition is not contested, the
Commission may initiate an investigation of the petition on its own
motion, or it may simply issue an order either approving or
disapproving 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 agreement, or requesting further submissions from the
parties.
[FR Doc. 94-5625 Filed 3-9-94; 8:45 am]
BILLING CODE 7035-01-P
