excerpts the examiner discussed the level of detention charges to be prescribed and found that the "costs of record for a driver and tractor-trailer unit range from $7.18 an hour to $14 an hour." He concluded that the proposed charge of $10 an hour was reasonable if the increments are 15-minute periods. The 1973 fully allocated pickup and delivery hourly costs for eight of the major rate publishing bureaus are listed in column (7) of table 1 of appendix III. With a range of $7.70 for SMC to $9.76 for RMB the cost diversity among the regions is less dramatic than within the Middle Atlantic region at the time we prescribed its charge. This phenomenon is not particularly startling. Recognizing that extreme diversities exist within the very large areas composing the motor common carrier rate bureau regions, we find nothing extraordinary in the premise that with respect to detention, intraregional carrier costs can very as greatly as average interregional costs.

In Ex Parte No. 297, Rate Bureau Investigation, 349 I.C.C. 811, 839-840 (1975), we questioned whether the various motor rate bureaus should join in seeking general rate increases on a nationwide basis instead of on a individual bureau basis. The record revealed an almost across-the-board preference for regional costs. Based in part upon these representations, we concluded that however meritorious the goal of unformity may be, it does not in this instance take precedence over each region's individual revenue needs, cost characteristics, and other differences which should be preserved. However, detention cannot be likened to a general increase. Having found a uniform nationwide detention rule advantageous with respect to its simplicity and uniformity, adaptability to curb current detention abuses, and emphasis on improving efficiency, we believe that the addition of uniform nationwide charges provides the logical counterpart to the rule and is both necessary and desirable if the rule is to live up to its expectations. This belief is particularly buttressed by our conclusion that (1) the detention charge is primarily a penalty charge and (2) the present regional detention structure precludes a satisfactory assessment of either regional carrier detention costs or general cost levels within the regions.

The detention charges adopted herein, while above the 1975 weighted average as calculated in table 1 of appendix III, are well within the range of charges presently in effect. We believe these charges at this time are sufficiently penal without providing an incentive to prolong detention, but upon a showing that such

charges fail to cover regional costs, they will be appropriately revised.

V. ANALYSIS OF THE ADOPTED RULE

It is now time to turn to the form and substance of the rule itself. As a result of the representations and subsequent close scrutiny, it appears that appendixes A and B of the proposed rule, as set forth in our Notice, were not sufficiently comprehensive or free of ambiguity in terms of current transportation needs. Consequently, the revised rule that has emerged and is adopted by this report is far better adapted to dealing with detention in today's context. Numerous structural changes have been made to the extended format for purposes of coherence and clarity. The representations of the parties and their implications were instrumental in developing the substantive changes and initiatives appearing in the rule. A conscientious effort was made to keep within the structure of current transportation and business practices so long as the results were not conducive to collusion. The following part-by-part analysis is intended to furnish insight into how the adopted rule should be interpreted while providing information concerning the sources of the rule's changes. For more specific sources of these changes, consult the comprehensive summation of the representations in appendix II, infra.

DETENTION-VEHICLES WITH POWER UNITS

Preamble. The proposed rule is the source of the preamble. It was modified to be consistent with the organization of the two rules and to be more inclusive.

Section 1.-General provisions.-Several relatively important changes to the rate bureau rules and the proposed rule have been made herein. In particular the former section 1(3), requiring the carrier to obtain a guarantee of payment for detention charges upon execution of section 7 of the bill of lading, was deleted. The Commission's credit regulations are adequate to handle the area of charges without resorting to the potentially troublesome and easily evaded restrictions of this former section. It is also anticipated that the other major changes regarding time entries, responsibility for delay, and recordkeeping will sufficiently strengthen this area without having to rely upon a section of this nature.

1. Section 1(a).-Weight limit.-In accordance with the suggestions of several respondents the proposed rule was modified to broaden the term "truckload shipments" to include shipments moving at stated minimum weights of 10,000 pounds. This acknowledges that truckload rates presently exist at this lower bracket, and that rate bureau tariffs generally recognize 10,000 pounds as the minimum truckload. Reducing the minimum truckload weight also was prompted in part to compensate for our decision, supra, to postpone consideration of the LTL-AQ rule. Although the proposed rule initially had been intended to include shipments traveling under a capacity load rule or involved in exclusive use of vehicle or expedited service, their specific inclusion conforms to standard rate bureau rules. The actual language used acknowledges that these rates are not offered by all carriers, and that their specific listing should not be construed as an exclusive or exhaustive compilation of when the detention rule may be applicable.

2. Section 1(b).—Applicability. The proposed rule was modified to be applicable when delay or detention is not attributable to the carrier. This issue of responsibility for delay engendered significant controversy. The change in emphasis, to place the burden of proving delay effectively on the shipper, was made partially in response to the problem of shipper abuse of the rule as presently drafted in Detention of Motor Vehicles-Middle Atl. & New England, supra. Some shippers apparently presume that any delay in loading or unloading is attributable to the carrier. They point to any occurrence as justification for blaming delay on the carrier. If such problems were exclusively the fault of the carrier, there simply would be no need for a detention rule or charge.

Revising the language in the section relieves the shipper of detention charges to the extent that the carrier identifiably caused them to accrue. Otherwise, upon expiration of free time, the unscrupulous shipper could consistently defeat the rule. Under the former wording, detention would not accrue in such circumstances and, as a consequence, free time would become irrelevant-an unacceptable resolution. When free time expires with neither party patently at fault, the carrier's vehicle is nevertheless detained. In such circumstances the delay should be attributable to the number of packages, packing, or packaging.

The change in the responsibility for delay is accompanied by changes in section 3, "Computation of Time." These changes give the shipper the option to enter the time of arrival and completion as

well as the length of carrier's employee's "normal nonworking period" onto the carrier's detention record and thereby provide the shipper with a heretofore nonexistent measure of control. These elements serve to counterbalance each other and make the adopted rule more equitable, efficient, and practical.

Furthermore, this resolution is preferable to a rule which generally refuses to acknowledge that detention can be the fault of the carrier. As a compromise, the revision should reduce the previous amount of controversy. Of course it remains true that neither this nor any tariff can definitively place fault. To parties intent on protracting the issue of responsibility for detention in violation of the rule's spirit, the final resolution can only be made on the particular facts in each case.

3. Section 1(d).-Assessing charges.-While precedent in the area of liability was clearly enunciated in Middle Atlantic Conference v. United States, 353 F. Supp. 1109 (D.C. 1972), the present modification of the proposed rule should eliminate any remaining uncertainty. The section was redrafted to reflect the recommendations of numerous critical and concerned parties. When charges must be assessed against the shipment because the person causing detention is not a party to the bill of lading, the party responsible for the payment of the freight charges will be held responsible for any accrued detention charges. At all other times, the party causing the detention is responsible regardless of whether the shipment is sent prepaid or collect.

Since the Commission's rule is not applicable to persons not party to the bill of lading contract, it can recompensate the carrier but generally fail to penalize the real source of detention abuse at port facilities. Note A reduces the charges owed under the Commission's detention rule to the extent the Federal Maritime Commission (FMC) promulgates and enforces payment of detention charges on third persons responsible for detention and subject to its jurisdiction. Nevertheless, the carrier remains entitled to recover charges from the party responsible for the payment of the freight charge to the extent the FMC charge yields less than the Commission's charge.

4. Section 1(e).-Driver and power unit..-While omitted in the proposed rule, this section is derived from the standard rate bureau rule. It simply indicates that the reduced detention charge for spotted trailers is predicated upon the absence of both the carrier's employee and power unit.

5. Section 1(f).-Normal business hours.-The proposed rule and the rate bureau rules are the source of this section. The term "normal business hours" is to be interpreted in its ordinary literal sense unless appropriately defined in carrier tariffs. It is therefore left undefined herein. The second sentence in the section was added in response to a request for clarification. It assures that the rule will not be interpreted to prevent carriers from accepting off-hour pickups or deliveries if circumstances make such pickups or deliveries expedient and performance is not on a preferential, discriminatory, or prejudicial basis.

Section 2.-Definitions. Since the Bureau of Enforcement and other parties request a section defining the operative terms of this rule, and such a section appears in rate bureau detention rules, we have concurred in the need for a definition section. An examination was made of all the specific requests for definitions but only a few were selected. A rule of such broad scope and national impact cannot define all terms without becoming overly generalized or unduly cumbersome. For example, terms such as "normal business hours" and "responsible representative" do not require definition. simply because they may already be defined in existing tariffs or may be construed in their normal form of usage consistently with the spirit of the rule. Subjective terms such as "reasonable" and "attributable to" are also better left undefined.

6. Section 2(a)—“Vehicle”.—The source of this definition was in Note A of the proposed appendix A. The definition is intentionally left broad to encompass all equipment, and renders the original exception redundant.

7. Sections 2(b) and (c)-"Loading" and "Unloading".-These definitions are taken almost verbatim from standard, current rate bureau rules. The proposed appendix A never contemplated fully defining these terms. However, in retrospect we believe the definitions add clarity and will thus eliminate a source of contention.

8. Section 2(d)-"Premises"-This definition was specifically developed to aid the computation of time. It is phrased to denote all surrounding attached and unattached property within reasonable proximity to the principal loading or unloading facility of consignor, consignee, or other designated parties.

9. Section 2(e)-"Site".-This is a standard definition inserted to distinguish between "site" and "premises" with respect to section. 4(f) and particularly with respect to the rule for Detention-Vehicles Without Power Units.