[Congressional Bills 103th Congress]
[From the U.S. Government Printing Office]
[S. 412 Enrolled Bill (ENR)]
S.412
One Hundred Third Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the fifth day of January, one thousand nine hundred and ninety-three
An Act
To amend title 49, United States Code, relating to procedures for
resolving claims
involving unfiled, negotiated transportation rates, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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This Act may be cited as the ``Negotiated Rates Act of 1993''.

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TRANSPORTATION RATES.
(a) In General.--Section 10701 of title 49, United States Code, is
amended by adding at the end the following:
``(f) Procedures for Resolving Claims Involving Unfiled, Negotiated
Transportation Rates.--
``(1) In general.--When a claim is made by a motor carrier of
property (other than a household goods carrier) providing
transportation subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of this title, by a freight forwarder
(other than a household goods freight forwarder), or by a party
representing such a carrier or freight forwarder regarding the
collection of rates or charges for such transportation in addition
to those originally billed and collected by the carrier or freight
forwarder for such transportation, the person against whom the claim
is made may elect to satisfy the claim under the provisions of
paragraph (2), (3), or (4) of this subsection, upon showing that--
``(A) the carrier or freight forwarder is no longer
transporting property or is transporting property for the
purpose of avoiding the application of this subsection; and
``(B) with respect to the claim--
``(i) the person was offered a transportation rate by
the carrier or freight forwarder other than that legally on
file with the Commission for the transportation service;
``(ii) the person tendered freight to the carrier or
freight forwarder in reasonable reliance upon the offered
transportation rate;
``(iii) the carrier or freight forwarder did not
properly or timely file with the Commission a tariff
providing for such transportation rate or failed to enter
into an agreement for contract carriage;
``(iv) such transportation rate was billed and collected
by the carrier or freight forwarder; and
``(v) the carrier or freight forwarder demands
additional payment of a higher rate filed in a tariff.
If there is a dispute as to the showing under subparagraph (A), such
dispute shall be resolved by the court in which the claim is
brought. If there is a dispute as to the showing under subparagraph
(B), such dispute shall be resolved by the Commission. Pending the
resolution of any such dispute, the person shall not have to pay any
additional compensation to the carrier or freight forwarder.
Satisfaction of the claim under paragraph (2), (3), or (4) of this
subsection shall be binding on the parties, and the parties shall
not be subject to chapter 119 of this title.
``(2) Claims involving shipments weighing 10,000 pounds or
less.--A person from whom the additional legally applicable and
effective tariff rate or charges are sought may elect to satisfy the
claim if the shipments each weighed 10,000 pounds or less, by
payment of 20 percent of the difference between the carrier's
applicable and effective tariff rate and the rate originally billed
and paid. In the event that a dispute arises as to the rate that was
legally applicable to the shipment, such dispute shall be resolved
by the Commission.
``(3) Claims involving shipments weighing more than 10,000
pounds.--A person from whom the additional legally applicable and
effective tariff rate or charges are sought may elect to satisfy the
claim if the shipments each weighed more than 10,000 pounds, by
payment of 15 percent of the difference between the carrier's
applicable and effective tariff rate and the rate originally billed
and paid. In the event that a dispute arises as to the rate that was
legally applicable to the shipment, such dispute shall be resolved
by the Commission.
``(4) Claims involving public warehousemen.--Notwithstanding
paragraphs (2) and (3), a person from whom the additional legally
applicable and effective tariff rate or charges are sought may elect
to satisfy the claim by payment of 5 percent of the difference
between the carrier's applicable and effective tariff rate and the
rate originally billed and paid if such person is a public
warehouseman. In the event that a dispute arises as to the rate that
was legally applicable to the shipment, such dispute shall be
resolved by the Commission.
``(5) Effects of election.--When a person from whom additional
legally applicable freight rates or charges are sought does not
elect to use the provisions of paragraph (2), (3), or (4), the
person may pursue all rights and remedies existing under this title.
``(6) Stay of additional compensation.--When a person proceeds
under this section to challenge the reasonableness of the legally
applicable freight rate or charges being claimed by a carrier or
freight forwarder described in paragraph (1) in addition to those
already billed and collected, the person shall not have to pay any
additional compensation to the carrier or freight forwarder until
the Commission has made a determination as to the reasonableness of
the challenged rate as applied to the freight of the person against
whom the claim is made.
``(7) Limitation on statutory construction.--Except as
authorized in paragraphs (2), (3), (4), and (9) of this subsection,
nothing in this subsection shall relieve a motor common carrier of
the duty to file and adhere to its rates, rules, and classifications
as required in sections 10761 and 10762 of this title.
``(8) Notification of election.--
``(A) General rule.--A person must notify the carrier or
freight forwarder as to its election to proceed under paragraph
(2), (3), or (4). Except as provided in subparagraphs (B), (C),
and (D), such election may be made at any time.
``(B) Demands for payment initially made after date of
enactment.--If the carrier or freight forwarder or party
representing such carrier or freight forwarder initially demands
the payment of additional freight charges after the date of the
enactment of this subsection and notifies the person from whom
additional freight charges are sought of the provisions of
paragraphs (1) through (7) at the time of the making of such
initial demand, the election must be made not later than the
later of--
``(i) the 60th day following the filing of an answer to
a suit for the collection of such additional legally
applicable freight rate or charges, or
``(ii) the 90th day following the date of the enactment
of this subsection.
``(C) Pending suits for collection made before or on date of
enactment.--If the carrier or freight forwarder or party
representing such carrier or freight forwarder has filed, before
or on the date of the enactment of this subsection, a suit for
the collection of additional freight charges and notifies the
person from whom additional freight charges are sought of the
provisions of paragraphs (1) through (7), the election must be
made not later than the 90th day following the date on which
such notification is received.
``(D) Demands for payment made before or on date of
enactment.--If the carrier or freight forwarder or party
representing such carrier or freight forwarder has demanded the
payment of additional freight charges, and has not filed a suit
for the collection of such additional freight charges, before or
on the date of the enactment of this subsection and notifies the
person from whom additional freight charges are sought of the
provisions of paragraphs (1) through (7), the election must be
made not later than the later of--
``(i) the 60th day following the filing of an answer to
a suit for the collection of such additional legally
applicable freight rate or charges, or
``(ii) the 90th day following the date of the enactment
of this subsection.
``(9) Claims involving small-business concerns, charitable
organizations, and recyclable materials.--Notwithstanding paragraphs
(2), (3), and (4), a person from whom the additional legally
applicable and effective tariff rate or charges are sought shall not
be liable for the difference between the carrier's applicable and
effective tariff rate and the rate originally billed and paid--
``(A) if such person qualifies as a small-business concern
under the Small Business Act (15 U.S.C. 631 et seq.),
``(B) if such person is an organization which is described
in section 501(c)(3) of the Internal Revenue Code of 1986 and
exempt from tax under section 501(a) of such Code, or
``(C) if the cargo involved in the claim is recyclable
materials, as defined in section 10733.''.
(b) Conforming Amendment.--Subsection (e) of such section is amended
by striking ``In'' and inserting ``Except as provided in subsection (f),
in''.
(c) Applicability.--The amendments made by subsections (a) and (b)
of this section shall apply to all claims pending as of the date of the
enactment of this Act and to all claims arising from transportation
shipments tendered on or before the last day of the 24-month period
beginning on such date of enactment.
(d) Report.--Not later than 18 months after the date of the
enactment of this Act, the Interstate Commerce Commission shall transmit
to Congress a report regarding whether there exists a justification for
extending the applicability of amendments made by subsections (a) and
(b) of this section beyond the period specified in subsection (c).
(e) Alternative Procedure for Resolving Disputes.--
(1) General rule.--For purposes of section 10701 of title 49,
United States Code, it shall be an unreasonable practice for a motor
carrier of property (other than a household goods carrier) providing
transportation subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of such title, a freight forwarder
(other than a household goods freight forwarder), or a party
representing such a carrier or freight forwarder to attempt to
charge or to charge for a transportation service provided before
September 30, 1990, the difference between the applicable rate that
is lawfully in effect pursuant to a tariff that is filed in
accordance with chapter 107 of such title by the carrier or freight
forwarder applicable to such transportation service and the
negotiated rate for such transportation service if the carrier or
freight forwarder is no longer transporting property between places
described in section 10521(a)(1) of such title or is transporting
property between places described in section 10521(a)(1) of such
title for the purpose of avoiding the application of this
subsection.
(2) Jurisdiction of commission.--The Commission shall have
jurisdiction to make a determination of whether or not attempting to
charge or the charging of a rate by a motor carrier or freight
forwarder or party representing a motor carrier or freight forwarder
is an unreasonable practice under paragraph (1). If the Commission
determines that attempting to charge or the charging of the rate is
an unreasonable practice under paragraph (1), the carrier, freight
forwarder, or party may not collect the difference described in
paragraph (1) between the applicable rate and the negotiated rate
for the transportation service. In making such determination, the
Commission shall consider--
(A) whether the person was offered a transportation rate by
the carrier or freight forwarder or party other than that
legally on file with the Commission for the transportation
service;
(B) whether the person tendered freight to the carrier or
freight forwarder in reasonable reliance upon the offered
transportation rate;
(C) whether the carrier or freight forwarder did not
properly or timely file with the Commission a tariff providing
for such transportation rate or failed to enter into an
agreement for contract carriage;
(D) whether the transportation rate was billed and collected
by the carrier or freight forwarder; and
(E) whether the carrier or freight forwarder or party
demands additional payment of a higher rate filed in a tariff.
(3) Stay of additional compensation.--When a person proceeds
under this subsection to challenge the reasonableness of the
practice of a motor carrier, freight forwarder, or party described
in paragraph (1) to attempt to charge or to charge the difference
described in paragraph (1) between the applicable rate and the
negotiated rate for the transportation service in addition to those
charges already billed and collected for the transportation service,
the person shall not have to pay any additional compensation to the
carrier, freight forwarder, or party until the Commission has made a
determination as to the reasonableness of the practice as applied to
the freight of the person against whom the claim is made.
(4) Treatment.--Paragraph (1) of this subsection is enacted as
an exception, and shall be treated as an exception, to the
requirements of sections 10761(a) and 10762 of title 49, United
States Code, relating to a filed tariff rate for a transportation or
service subject to the jurisdiction of the Commission and other
general tariff requirements.
(5) Nonapplicability of negotiated rate dispute resolution
procedure.--If a person elects to seek enforcement of paragraph (1)
with respect to a rate for a transportation or service, section
10701(f) of title 49, United States Code, as added by subsection (a)
of this section, shall not apply to such rate.
(6) Definitions.--For purposes of this subsection, the following
definitions apply:
(A) Commission, household goods, household goods freight
forwarder, and motor carrier.--The terms ``Commission'',
``household goods'', ``household goods freight forwarder'', and
``motor carrier'' have the meaning such terms have under section
10102 of title 49, United States Code.
(B) Negotiated rate.--The term ``negotiated rate'' means a
rate, charge, classification, or rule agreed upon by a motor
carrier or freight forwarder described in paragraph (1) and a
shipper through negotiations pursuant to which no tariff was
lawfully and timely filed with the Commission and for which
there is written evidence of such agreement.
(f) Prior Settlements and Adjudications.--Any claim that, but for
this subsection, would be subject to any provision of this Act
(including any amendment made by this Act) and that was settled by
mutual agreement of the parties to such claim, or resolved by a final
adjudication of a Federal or State court, before the date of the
enactment of this Act shall be treated as binding, enforceable, and not
contrary to law, unless such settlement was agreed to as a result of
fraud or coercion.
(g) Rate Reasonableness.--Section 10701(e) of title 49, United
States Code, is amended by adding at the end the following: ``Any
complaint brought against a motor carrier (other than a carrier
described in subsection (f)(1)(A)) by a person (other than a motor
carrier) for unreasonably high rates for past or future transportation
shall be determined under this subsection.''.

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(a) Motor Carrier Charges.--Section 11706(a) of title 49, United
States Code, is amended by striking the period at the end and inserting
the following: ``; except that a motor carrier (other than a motor
carrier providing transportation of household goods) or freight
forwarder (other than a household goods freight forwarder)--
``(1) must begin such a civil action within 2 years after the
claim accrues if the transportation or service is provided by the
carrier in the 1-year period beginning on the date of the enactment
of the Negotiated Rates Act of 1993; and
``(2) must begin such a civil action within 18 months after the
claim accrues if the transportation or service is provided by the
carrier after the last day of such 1-year period.''.
(b) Motor Carrier Overcharges.--Section 11706(b) of title 49, United
States Code, is amended by striking ``. If that claim is against a
common carrier'' and inserting the following: ``; except that a person
must begin a civil action to recover overcharges from a motor carrier
subject to the jurisdiction of the Commission under subchapter II of
chapter 105 of this title for transportation or service--
``(1) within 2 years after the claim accrues if such
transportation or service is provided in the 1-year period beginning
on the date of the enactment of the Negotiated Rate Act of 1993; and
``(2) within 18 months after the claim accrues if such
transportation or service is provided after the last day of such 1-
year period.
If the claim is against a common carrier''.
(c) Conforming Amendment.--Section 11706(d) of title 49, United
States Code, is amended--
(1) by striking ``3-year period'' each place it appears and
inserting ``limitation periods'';
(2) by striking ``is extended'' the first place it appears and
inserting ``are extended''; and
(3) by striking ``each''.

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(a) In General.--Chapter 117 of title 49, United States Code, is
amended by adding at the end the following:
``§11712. Tariff reconciliation rules for motor common carriers of
property
``(a) Mutual Consent.--Subject to Commission review and approval,
motor carriers subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of this title (other than motor carriers
providing transportation of household goods) 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 sections 10761 and
10762 of this title. Resolution of such claims among the parties shall
not subject any party to the penalties of chapter 119 of this title.
``(b) Limitation on Statutory Construction.--Nothing in this section
shall relieve the motor carrier of the duty to file and adhere to its
rates, rules, and classifications as required in sections 10761 and
10762, except as provided in subsection (a) of this section.
``(c) Rulemaking Proceeding.--Not later than 90 days after the date
of the enactment of this section, the Commission shall institute a
proceeding to establish rules pursuant to which the tariff requirements
of sections 10761 and 10762 of this title shall not apply under
circumstances described in subsection (a) of this section.''.
(b) Conforming Amendment.--The analysis for chapter 117 of title 49,
United States Code, is amended by adding at the end the following:
``11712. Tariff reconciliation rules for motor common carriers of
property.''.

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(a) Customer Account Codes.--Section 10762 of title 49, United
States Code, is amended by adding at the end the following:
``(h) Customer Account Codes.--No tariff filed by a motor carrier of
property with the Commission before, on, or after the date of the
enactment of this subsection may be held invalid solely on the basis
that a numerical or alpha account code is used in such tariff to
designate customers or to describe the applicability of rates. For
transportation performed on and after the 180th day following such date
of enactment, the name of the customer for each account code must be set
forth in the tariff (other than the tariff of a motor carrier providing
transportation of household goods).''.
(b) Range Tariffs.--Such section is further amended by adding at the
end the following:
``(i) Range Tariffs.--No tariff filed by a motor carrier of property
with the Commission before, on, or after the date of the enactment of
this subsection may be held invalid solely on the basis that the tariff
does not show a specific rate or discount for a specific shipment if the
tariff is based on a range of rates or discounts for specific classes of
shipments. For transportation performed on or after the 180th day
following such date of enactment, such a range tariff must identify the
specific rate or discount from among the range of rates or discounts
contained in such range tariff which is applicable to each specific
shipment or must contain an objective means for determining the rate.''.

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(a) In General.--Section 10702 of title 49, United States Code, is
amended by adding at the end the following new subsection:
``(c) Contracts of Carriage for Motor Contract Carriers.--
``(1) General rule.--A motor contract carrier providing
transportation subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of this title shall enter into a
written agreement, separate from the bill of lading or receipt, for
each contract for the provision of transportation subject to such
jurisdiction which is entered into after the 90th day following the
date of the enactment of this subsection.
``(2) Minimum content requirements.--The written agreement
shall, at a minimum--
``(A) identify the parties thereto;
``(B) commit the shipper to tender and the carrier to
transport a series of shipments;
``(C) contain the contract rate or rates for the
transportation service to be or being provided; and
``(D)(i) state that it provides for the assignment of motor
vehicles for a continuing period of time for the exclusive use
of the shipper; or
``(ii) state that it provides that the service is designed
to meet the distinct needs of the shipper.
``(3) Retention by carrier.--All written agreements entered into
by a motor contract carrier under paragraph (1) shall be retained by
the carrier while in effect and for a minimum period of 3 years
thereafter and shall be made available to the Commission upon
request.
``(4) Random audits by commission.--The Commission shall conduct
periodic random audits to ensure that motor contract carriers are
complying with this subsection and are adhering to the rates set
forth in their agreements.''.
(b) Civil Penalty.--Section 11901(g) of such title is amended--
(1) by inserting ``or enter into or retain a written agreement
under section 10702(c) of this title'' after ``under this subtitle''
the first place it appears; and
(2) by striking ``or (5)'' and inserting ``(5) does not comply
with section 10702(c) of this title, or (6)''.
(c) Criminal Penalty.--Section 11909(b) of such title is amended--
(1) by inserting ``or enter into or retain a written agreement
under section 10702(c) of this title'' after ``under this subtitle''
the first place it appears; and
(2) in clause (1) by inserting after ``make that report'' the
following: ``or willfully does not enter into or retain that
agreement''.

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(a) In General.--Subchapter IV of chapter 107 of title 49, United
States Code, is amended by adding at the end the following:
``§10767. Billing and collecting practices
``(a) Regulations Limiting Reduced Rates.--Not later than 120 days
after the date of the enactment of this section, the Commission shall
issue regulations that prohibit a motor carrier subject to the
jurisdiction of the Commission under subchapter II of chapter 105 of
this title from providing a reduction in a rate set forth in its tariff
or contract for the provision of transportation of property to any
person other than (1) the person paying the motor carrier directly for
the transportation service according to the bill of lading, receipt, or
contract, or (2) an agent of the person paying for the transportation.
``(b) Disclosure of Actual Rates, Charges, and Allowances.--The
regulations of the Commission issued pursuant to this section shall
require a motor carrier to disclose, when a document is presented or
transmitted electronically for payment to the person responsible
directly to the motor carrier for payment or agent of such responsible
person, the actual rates, charges, or allowances for the transportation
service and shall prohibit any person from causing a motor carrier to
present false or misleading information on a document about the actual
rate, charge, or allowance to any party to the transaction. Where the
actual rate, charge, or allowance is dependent upon the performance of a
service by a party to the transportation arrangement, such as tendering
a volume of freight over a stated period of time, the motor carrier
shall indicate in any document presented for payment to the person
responsible directly to the motor carrier for the payment that a
reduction, allowance, or other adjustment may apply.
``(c) Payments or Allowances for Certain Services.--The regulations
issued by the Commission pursuant to this section shall not prohibit a
motor carrier from making payments or allowances to a party to the
transaction for services that would otherwise be performed by the motor
carrier, such as a loading or unloading service, if the payments or
allowances are reasonably related to the cost that such party knows or
has reason to know would otherwise be incurred by the motor carrier.''.
(b) Conforming Amendment.--The analysis for such subchapter is
amended by adding at the end the following new item:
``10767. Billing and collecting practices.''.
(c) Violation.--
(1) In general.--Section 11901 of such title is amended by
redesignating subsection (l) as subsection (m) and by inserting
after subsection (k) the following:
``(l) Rate Discounts.--A person, or an officer, employee, or agent
of that person, that knowingly pays, accepts, or solicits a reduced rate
or rates in violation of the regulations issued under section 10767 of
this title is liable to the United States for a civil penalty of not
less than $5,000 and not more than $10,000 plus 3 times the amount of
damages which a party incurs because of such violation. Notwithstanding
any other provision of this title, the express civil penalties and
damages provided for in this subsection are the exclusive legal
sanctions to be imposed under this title for practices found to be in
violation of the regulations issued under section 10767 and such
violations do not render tariff or contract provisions void or
unenforceable.''.
(2) Venue.--Section 11901(m)(2) of such title (as redesignated
by paragraph (1)) is amended by striking ``or (k)'' and inserting
``(k), or (l)''.

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CAPACITIES.
Section 11101 of title 49, United States Code, is amended by adding
at the end the following:
``(d) Resolution of Disputes Relating to Contract or Common Carrier
Capacities.--If a motor carrier (other than a motor carrier providing
transportation of household goods) subject to the jurisdiction of the
Commission under subchapter II of chapter 105 of this title has
authority to provide transportation as both a motor common carrier and a
motor contract carrier and a dispute arises as to whether certain
transportation is provided in its common carrier or contract carrier
capacity and the parties are not able to resolve the dispute
consensually, the Commission shall have jurisdiction to, and shall,
resolve the dispute.''.

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Nothing in this Act (including any amendment made by this Act) shall
be construed as limiting or otherwise affecting application of title 11,
United States Code, relating to bankruptcy; title 28, United States
Code, relating to the jurisdiction of the courts of the United States
(including bankruptcy courts); or the Employee Retirement Income
Security Act of 1974.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

c90a36e20da5945b31506ae139db427cf4b937d2c8843d37b4d0138d84e77850

Truck Undercharge bill — S. 412

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