Page:United States Statutes at Large Volume 109 Part 1.djvu/894

 109 STAT. 878 PUBLIC LAW 104-88 —DEC. 29, 1995 a carrier or freight forwarder to attempt to charge or to charge for a transportation service the difference between (1) the appHcable rate that was lawfully in effect pursuant to a tariff that was filed in accordance with this chapter or, with respect to transportation provided before the effective date of this section, in accordance with chapter 107, as in effect on the date the transportation was provided, by the carrier or freight forwarder applicable to such transportation service, and (2) the negotiated rate for such transportation service if the carrier or freight forwarder is no longer transporting property between places described in section 13501(1) or is transporting property between places described in section 13501(1) for the purpose of avoiding application of this section. "(b) JURISDICTION OF BOARD. — " (1) DETERMINATION. —The Board 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 subsection (a). If the Board determines that attempting to charge or the charging of the rate is an unreasonable practice under subsection (a), the carrier, freight forwarder, or party may not collect the difference described in subsection (a) between the applicable rate and the negotiated rate for the transportation service. "(2) FACTORS TO CONSIDER.—In making a determination under paragraph (1), the Board 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 Interstate Commerce Commission or the Board, as required, at the time of the movement 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 Interstate Commerce Commission or the Board, as required, 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. "(c) STAY OF ADDITIONAL COMPENSATION. —When a person proceeds under this section to challenge the reasonableness of the practice of a motor carrier, freight forwarder, or party described in subsection (a) to attempt to charge or to charge the difference described in subsection (a) 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 Board 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. "(d) TREATMENT.—Subsection (a) is an exception to the requirements of section 13702 and, for transportation provided before

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