I
103D CONGRESS
1ST SESSION
H. R. 2021
To establish procedures to resolve undercharge claims by motor carriers
based on negotiated but unfiled or illegal tariff rates, to ensure the
proper, timely, and accurate filing and enforcement of motor carrier
rates in tariffs, to reaffirm the requirement for written transportation
contracts, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 6, 1993
Mr. LIPINSKI introduced the following bill; which was referred jointly to the
Committees on Public Works and Transportation, the Judiciary, and
Education and Labor
A BILL
To establish procedures to resolve undercharge claims by
motor carriers based on negotiated but unfiled or illegal
tariff rates, to ensure the proper, timely, and accurate
filing and enforcement of motor carrier rates in tariffs,
to reaffirm the requirement for written transportation
contracts, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Undercharge Settle-
ment and Amnesty Act of 1993’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) over the past decade there have been ongo-
ing disputes between shippers of freight, on the one
hand, and motor carriers or their representatives in
bankruptcy and creditors, on the other hand, regard-
ing the proper resolution of claims for collection of
freight charges for transportation services that rep-
resent the difference between filed tariff rates and
rates that were negotiated with shippers for which
tariffs were not filed, not timely filed, or not legally
filed with the Interstate Commerce Commission as
required by law or for which lawful contract carriage
did not result;
(2) such disputes continue to remain unresolved
and have burdened the dockets of the Federal
courts, consumed the time and resources of the
Interstate Commerce Commission, caused shippers
and the motor carrier industry to engage in seem-
ingly endless debate and litigation, and prevented or
delayed the collection and distribution of the assets
of motor carrier bankruptcy estates to creditors, in-
cluding pension funds and former employees of the
bankrupt motor carriers;
(3) in order to resolve these disputes and allow
the proper administration of motor carrier bank-
ruptcy estates through the prompt collection of as-
sets and distribution of funds to creditors, it is in
the public interest to establish a procedure authoriz-
ing persons to resolve these claims without fear of
violating the Interstate Commerce Act and without
the allocation of fault;
(4) the interests of motor carriers, shippers,
and the public are best served by the requirement
that the rates, charges, rules, and classifications of
motor common carriers continue to be filed with the
Interstate Commerce Commission and made avail-
able to the public in tariffs; and
(5) the filed rate doctrine continues to be a
valid principle governing all interstate common car-
riage conducted in the United States.
SEC. 3. PROCEDURE FOR RESOLVING CLAIMS INVOLVING
UNDERCHARGE CLAIMS.
Section 10701 of title 49, United States Code, is
amended by adding at the end the following:
‘‘(f) PROCEDURE FOR RESOLVING CLAIMS INVOLV-
ING UNDERCHARGE CLAIMS.—
‘‘(1) IN GENERAL.—
‘‘(A) ELECTION
AUTHORITY.—When an
undercharge claim is made by a motor carrier
of property (other than a household goods car-
rier), by a nonhousehold goods freight for-
warder, or by a party representing or succeed-
ing to the rights of such a carrier or forwarder
(hereinafter in this subsection such a carrier,
freight forwarder, or party is referred to as a
‘carrier claimant’), the person against whom the
claim is made may elect to satisfy such claim
in accordance with the procedures set forth in
paragraph (2).
‘‘(B) UNDERCHARGE
CLAIM
DEFINED.—
For the purposes of this subsection, the term
‘undercharge claim’ means a claim for any un-
dercharges made by a carrier claimant arising
out of a rate, charge, classification or rule
agreed 
upon 
by 
the 
motor 
carrier 
or
nonhousehold goods freight forwarder and a
shipper that either allegedly was not legally or
timely filed in a tariff with the Commission or,
in the case of a claim of contract carriage,
where the contract or services performed there-
under did not constitute valid contract carriage,
and where a shipper tendered freight and made
payment to the motor carrier in reasonable reli-
ance upon the agreed upon rate, charge, classi-
fication, or rule.
‘‘(C) JURISDICTION OF COURTS.—The dis-
trict courts of the United States shall have ex-
clusive jurisdiction over an undercharge claim.
‘‘(D) LIMITATION
ON
APPLICABILITY.—
This subsection does not apply to a claim based
upon the failure of a shipper to pay a tariff rate
where no undercharge claim is involved.
‘‘(E) UNDERCHARGE
DEFINED.—For the
purposes of this subsection, the term ‘‘under-
charge’’ means the difference between the al-
leged legally applicable tariff rate and the rate
paid by the shipper when the rate paid is less
than the tariff rate.
‘‘(2) PROCEDURE.—
‘‘(A) 35 PERCENT PAYMENT.—Subject to
subparagraph (B) and paragraphs (3) and (4),
the person against whom an undercharge claim
has been made may elect to satisfy such claim
by payment of 35 percent of the undercharge.
‘‘(B) DEADLINE
FOR
ELECTION.—The
election must be made no later than the 90th
day after the carrier claimant has notified the
person from whom additional freight charges
are sought of the provisions of this subsection
and the person’s right of election thereunder.
‘‘(C) EFFECTIVE PERIOD.—The election to
satisfy undercharge claims provided for in this
paragraph shall apply to all undercharge claims
pending as of the date of the enactment of this
subsection and to all undercharge claims arising
from transportation shipments tendered on or
before the last day of the 12-month period be-
ginning on such date of enactment.
‘‘(D) EFFECT OF CLAIM SATISFACTION.—
Satisfaction of a claim under this paragraph
shall be binding on the parties, and the parties
with respect to the claim shall not be subject to
chapter 119 of this title, relating to civil and
criminal penalties.
‘‘(3) EFFECT OF NONELECTION.—
‘‘(A) PRESERVATION OF EXISTING RIGHTS
AND REMEDIES.—In the event a shipper or per-
son against whom an undercharge claim has
been made does not elect to use the procedure
established under paragraph (2), the shipper or
person may pursue all existing rights and rem-
edies under this title.
‘‘(B) DETERMINATION OF RATE REASON-
ABLENESS.—In the case of an undercharge
claim referred to in subparagraph (A), if the
shipper or person asserts a counterclaim
against a carrier claimant arising out of the un-
dercharge claim on the ground of rate reason-
ableness, a court may stay proceedings so as to
permit the shipper or such other person to file
a complaint with the Commission challenging
the reasonableness of the rate being sought. In
the event the court permits the filing of such a
complaint, the Commission shall issue a ruling
thereon and report it to the court within 6
months of the date the complaint is filed unless
the court further extends its stay for an addi-
tional specified period. If the rate sought to be
collected is found unreasonable, the Commission
shall determine a maximum reasonable rate.
‘‘(C) ATTORNEYS’ 
FEES.—If a carrier
claimant ultimately prevails in recovering any
part of an undercharge claim referred to in sub-
paragraph (A) following litigation of a rate rea-
sonableness complaint, the court shall award
such carrier claimant reasonable attorneys’ fees
and costs of litigation.
‘‘(4) DEFENSE TO UNDERCHARGE CLAIM.—
‘‘(A) 
IN
GENERAL.—Notwithstanding
paragraphs (1), (2), and (3), a person shall not
be liable for an undercharge claim made by a
carrier claimant if such person is a small-busi-
ness concern, a charitable organization, or the
cargo involved in the claim is recyclable mate-
rials, as defined in section 10733.
‘‘(B) WAIVER.—The defense to liability
granted under subparagraph (A) shall be
waived unless asserted within 90 days of receipt
from the carrier claimant of notice of the provi-
sions of this subsection.
‘‘(C) DEFINITIONS.—For purposes of this
paragraph—
‘‘(i) the term ‘small-business’ concern
means a business whose average gross an-
nual revenues as evidenced by its Federal
income tax returns for its last 3 years of
operation were less than $5,000,000; and
‘‘(ii) the term ‘charitable organization’
means any organization which is described
in section 501(c)(3) of the Internal Reve-
nue Code of 1986 and exempt from tax
under section 501(a) of such Code.
‘‘(5) BURDEN OF PROOF.—In the case of any
claim to which the reasonableness of the rate filed
before, on, or after the date of the enactment of this
subsection with the Commission is in question, the
Commission shall determine the reasonableness of
such rate for shipments of property made before, on,
or after such date of enactment in accordance with
the criteria set forth in subsection (e). The com-
plainant shall have the burden of proof in any action
challenging the reasonableness of such a rate. For
undercharge claims based upon shipments trans-
ported prior to January 1, 1992, the carrier claim-
ant shall have the burden of presenting evidence
supporting the reasonableness of its filed rate or a
maximum reasonable rate.
‘‘(6) 
PRESERVATION
OF
DUTY
TO
FILE
RATES.—Except as authorized in paragraphs (2)
and (8) of this subsection, nothing in this subsection
shall relieve a motor carrier or nonhousehold goods
freight forwarder of the duty to file and adhere to
its rates, rules, and classifications as required by
sections 10761 and 10762.
‘‘(7) CUSTOMER ACCOUNT CODE.—
‘‘(A) LIMITATION ON ASSERTION OF UN-
DERCHARGE
CLAIM.—Notwithstanding 
any
other provision in this subsection, motor car-
riers or nonhousehold goods freight forwarders
that transported property in interstate or for-
eign commerce on or after July 1, 1992, pursu-
ant to a certificate or license issued by the
Commission shall not be permitted to assert
any undercharge claim against any person
based upon the illegality of a tariff filed with
the Commission containing a customer account
code.
‘‘(B) DELETION.—Any tariff which does
not identify the recipient of the coded customer
account code rate shall be deleted by the motor
carrier from its tariff within 90 days of the
date of the enactment of this subsection.
‘‘(C) CUSTOMER
ACCOUNT
CODE
DE-
FINED.—For purposes of this subsection, the
term ‘customer account code’ means a rate filed
with the Commission in a tariff of a motor car-
rier or nonhousehold goods freight forwarder in
code form for the benefit of an unnamed ship-
per or other person.
‘‘(8) ENFORCEABILITY OF CLAIMS.—
‘‘(A) 
PRE-EFFECTIVE
DATE.—Notwith-
standing any provision of this title, any settle-
ment or payment of an undercharge claim en-
tered into prior to the effective date of this sub-
section shall be deemed binding, enforceable,
and not contrary to law.
‘‘(B) POST-EFFECTIVE DATE.—Any settle-
ment of an undercharge claim on or after the
effective date of this subsection shall be bind-
ing, enforceable, and not contrary to law only if
such settlement is accomplished in conformity
with this subsection or is approved by a court
of competent jurisdiction.
‘‘(9) COUNTERCLAIMS
AND
SETOFFS.—Not-
withstanding any other provision of this title or any
defense provided for in this subsection, motor car-
riers or nonhousehold goods freight forwarders may
assert undercharge claims as counterclaims or
setoffs to any action commenced or claim made by
a shipper unless the shipper has complied with the
provisions of paragraphs (2)(A) and (2)(B).’’.
SEC. 4. STATUTE OF LIMITATIONS.
(a) MOTOR
CARRIER
UNDERCHARGES.—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 common carrier providing transportation
or service subject to the jurisdiction of the Commission
under subchapter II of chapter 105 of this title—
‘‘(1) must begin, within 24 months after the
claim accrues, a civil action to recover charges for
such transportation or service if such transportation
or service is provided by the carrier on or after the
date of the enactment of the Undercharge Settle-
ment and Amnesty Act of 1993 and before the date
that is 1 year after such date of enactment; and
‘‘(2) must begin such a civil action within 18
months after the claim accrues if such transpor-
tation or service is provided by the carrier on or
after the date that is 1 year after such date of en-
actment.’’.
(b) 
MOTOR
CARRIER
OVERCHARGES.—Section
11706(b) is amended by striking the period at the end
of the first sentence and inserting the following: ‘‘; except
that a person must begin within 24 months after the claim
accrues a civil action to recover overcharges from a carrier
subject to the jurisdiction of the Commission under sub-
chapter II of chapter 105 of this title for transportation
or service taking place on or after the date of the enact-
ment of the Undercharge Settlement and Amnesty Act of
1993 and before the date that is 1 year after such date
of enactment and, for the transportation or service taking
place on or after the date that is 1 year following such
date of enactment, a person must begin such a civil action
within 18 months after the claim accrues.’’.
(c) CONFORMING AMENDMENT.—Section 11706(d) is
amended—
(1) by striking ‘‘The three-year period’’ each
place it appears and inserting ‘‘A limitation period’’;
and
(2) by striking ‘‘that 3-year’’ and inserting
‘‘that limitation’’.
SEC. 5. TARIFF RECONCILIATION RULES FOR MOTOR COM-
MON CARRIERS OF PROPERTY.
(a) IN GENERAL.—Chapter 117 of title 49, United
States Code, is amended by adding at the end the follow-
ing new section:
‘‘§ 11712. Tariff reconciliation rules for motor com-
mon carriers of property
‘‘(a) IN GENERAL.—Subject to Commission review
and approval, motor carriers subject to the jurisdiction of
the Commission under subchapter II of chapter 105 of
this title and shippers may, within 6 months after the date
of the shipment, resolve, by mutual consent in a writing
signed by both parties and retained by a motor carrier
for 3 years, overcharge and undercharge claims resulting
from billing errors or incorrect tariff provisions 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 sub-
ject any party to the penalties of chapter 119 of this title.
‘‘(b) LIMITATION ON STATUTORY CONSTRUCTION.—
Nothing in this section shall be construed to relieve a
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) INSTITUTION OF RULEMAKING PROCEEDING.—
Within 90 days after the date of the enactment of this
section, the Commission shall institute a proceeding to es-
tablish 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.—This analysis for
chapter 117 of such title is amended by adding at the end
the following:
‘‘11712. Tariff reconciliation rules for common carrier of property.’’.
SEC. 6. RATES AND CONTRACTS OF MOTOR CONTRACT
CARRIERS.
Section 10702 of title 49, United States Code, is
amended by adding at the end the following:
‘‘(c) CONTRACTS OF MOTOR CONTRACT CARRIERS.—
‘‘(1) GENERAL RULE.—A motor contract car-
rier shall enter into a written agreement, separate
from the bill of lading, for each contract of carriage.
‘‘(2) CONTENTS OF AGREEMENT.—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 pro-
vided; and
‘‘(D)(i) provide for the assignment of
motor vehicles for a continuing period of time
for the exclusive use of the shipper; or
‘‘(ii) provide that the service is designed to
meet the distinct operational needs of the ship-
per.
‘‘(3) PERIOD OF CONTRACT RETENTION.—All
written agreements entered into by a motor contract
carrier shall be retained by the carrier while in effect
and for a minimum period of 3 years thereafter and
made available to the Commission upon request.
Failure by a motor carrier to so retain its written
agreement with a shipper shall not, however, subject
such shipper to any undercharge or other liability.
‘‘(4) RANDOM AUDITS.—The Commission shall
conduct periodic random audits to ensure that motor
carriers are complying with this subsection and are
adhering to the rates set forth in their agreements.’’.
SEC. 7. TARIFF FILING ENFORCEMENT.
Subchapter IV of chapter 107 of title 49, United
States Code, is amended by adding at the end the follow-
ing:
‘‘§ 10767. Tariff filing enforcement
‘‘Not later than 90 days after the date of the enact-
ment of this section, the Commission shall issue final reg-
ulations prohibiting the filing of tariffs under this chapter
by motor carriers that fail to state clearly and concisely
the actual rates or charges for a transportation service or
a methodology for determining the rates or charges (such
as range and trigger tariffs) or that misapply freight clas-
sifications.’’.
SEC. 8. BILLING AND COLLECTION PRACTICES.
(a) IN GENERAL.—Subchapter IV of chapter 107 of
title 49, United States Code, is further amended by adding
at the end the following:
‘‘§ 10768. Billing and collection practices
‘‘Not later than 90 days after the enactment of this
section, the Commission shall issue final regulations pro-
hibiting a motor carrier subject to the jurisdiction of the
Commission under subchapter II of chapter 105 of this
title—
‘‘(1) from giving a reduction in a rate set forth
in its tariff or contract to any person other than the
person who is paying for the transportation service
and is indicated on the original bill of lading as the
person paying for such service; and
‘‘(2) from failing to insert that reduction in the
rate on the freight bill or other document presented
for payment.
It shall be a violation of chapter 119 for any carrier or
person knowingly to pay, accept, or solicit a reduced rate
in violation of this section. It shall also be a violation of
chapter 119 for any carrier or person knowingly to provide
false or misleading information about the actual rates or
charges for the transportation service in a freight bill or
document presented for payment.’’.
(b) CHAPTER
ANALYSIS
CONFORMING
AMEND-
MENT.—The analysis for such subchapter is amended by
adding at the end the following:
‘‘10767. Tariff filing enforcement.
‘‘10768. Billing and collection practices.’’.
SEC. 9. REPORT ON ELECTRONIC TARIFF FILING.
Within 1 year after the date of the enactment of this
Act, the Interstate Commerce Commission shall submit a
report to Congress on the feasibility, costs, and benefits
of implementation of a system for electronic tariff filing
of motor common carrier rates and charges and a program
for implementation thereof.
SEC. 10. PRIORITY PAYMENTS IN CASES INVOLVING THE
DEBTOR’S RECOVERY OF UNDERCHARGES.
Paragraphs (3) and (4) of section 507(a) of title 11,
United States Code, are each amended by adding at the
end the following:
‘‘The limitations specified in subparagraphs (A) and
(B) shall not apply in a case in which the debtor is
a motor carrier (as defined in section 10102 of title
49) that asserts a right against any person or gov-
ernmental unit to a recovery of an undercharge (as
defined in section 10701(f) of title 49).’’.
SEC. 11. PROTECTION FOR PENSION FUND OBLIGATIONS
OF MOTOR CARRIERS.
Part 1 of subtitle D of title IV of the Employee Re-
tirement Income Security Act of 1974 is amended by add-
ing at the end the following:
‘‘SEC. 4226. LIEN FOR LIABILITY IN FAVOR OF MOTOR CAR-
RIER PLANS.
‘‘(a) IN GENERAL.—If any motor carrier that is sub-
ject to the jurisdiction of the Interstate Commerce Com-
mission under subtitle IV of title 49, United States Code,
is a debtor in a case under title 11, United States Code,
and is liable to a multiemployer plan under section 4219
neglects or refuses to pay, after demand has been made
by the plan in accordance with section 4219(b)(1) or after
a default described in section 4219(c)(5), any installment
payment or any amount of accelerated withdrawal liability,
there shall be a lien in favor of the plan in the amount
of such payment or amount on all undercharges, as de-
fined in section 10701(f) of title 49, United States Code,
which such motor carrier then has or may have in the fu-
ture.
‘‘(b) TIMING OF LIEN.—The lien imposed by sub-
section (a) arises on the date that any installment pay-
ment under section 4219(c)(1)(A) was due but not paid
or on the date that default occurs under section
4219(c)(5).
‘‘(c) ADMINISTRATION
AND
ENFORCEMENT
OF
LIEN.—For all purposes related to the administration and
enforcement of the lien established by subsection (a), the
provisions applicable to liens in favor of the corporation
under sections 4068(c) and 4068(d) shall apply to such
lien in connection with the multiemployer plan in the same
manner and to the same extent as such provisions apply
to liens in connection with the corporation.
‘‘(d) RELEASE OF SUBORDINATION.—The lien estab-
lished under subsection (a) may be released or subordi-
nated, in whole or in part, if and only if the plan, in its
judgment, issues a certification that such release or such
subordination will ultimately increase the likelihood of the
plan’s collection of the withdrawal liability obligations
which are the subject of the lien.’’.
(b) CLERICAL AMENDMENT.—The table of contents
in section 1 of such Act is amended by inserting after the
item relating to section 4225 the following new item:
‘‘Sec. 4226. Lien for liability in favor of motor carrier plans.’’.
Æ
HR 2021 IH——2