New “interim” rules covering intrastate household goods transportation in New Hampshire went into effect April 27, 2023. The Road Toll Bureau, a division within the NH Department of Safety, recently obtained approval for the interim rules proposed which it deems necessary to regulate household goods carriers in New Hampshire in accordance with new chapter 359-T – Carriage of Household Goods for Hire by Motor Vehicle.[1] As we reported previously, the New Hampshire Legislature repealed the existing household goods statute (R.S.A. 375-A) and enacted a new chapter in the NH Revised Statutes Annotated which, on and after January 1, 2023, significantly deregulates the licensure and rate-regulation of for-hire carriage of household goods by eliminating certain public utility requirements and bolstering consumer protections.
The following summary of the new rules is intended to alert the industry to some of the more noteworthy changes relative to move estimates, contracting with individual shippers, annual reports and application procedures for obtaining or transferring a carrier certificate or permit.
HHG Tariffs – Repealed
Under the previous rules, a household goods carrier was required to file with the Bureau a “tariff” (or tariff supplement), which filing was required to specify the basis of all charges and applicable rules necessary for a complete description of the charges. If not rejected by the regulator, once filed, it became the lawfully published tariff of the household goods carrier. The new statute and rules eliminate any legal requirement to file tariffs or supplements with the Bureau, or any other State regulator. Tariffs simply are not mentioned in either the new statute or rules. With this change, New Hampshire has legislatively repealed a legal doctrine first created at the Federal level to regulate interstate transportation and later adopted by the States, including New Hampshire governing intrastate for-hire transportation, known as the “filed rate doctrine.” The effect of requiring common carriers to file tariffs with a regulatory agency having jurisdiction over the carrier’s rates and practices made the filed rates, charges, classifications and practices related thereto to take on “the force of law.” While the filed rate doctrine is unyielding on tariff rates and charges in terms of what the common carrier must charge and the shipper must pay, it also served as an effective mechanism for protecting the mover from unreasonable demands of a shipper, so long as the mover established, observed and enforced reasonable practices in its filed tariff, approved by the regulator.
In this writer’s opinion, the effect of repeal of the filed rate doctrine by elimination of tariff filing will be to put the focus on the mover’s bill of lading and Article 7 (Documents of Title) of the New Hampshire Uniform Commercial Code for appropriate terms, conditions and limitations of liability for loss or damage to goods entrusted.
HHG Estimates Must Be In Writing And Must Not Exceed 10% of Estimate of Cost
Upon the request of any customer, a household goods carrier must provide a written estimate of cost to the customer in advance of performing any service. The written estimate must include a statement that the carrier will not charge the shipper any amount which exceeds 10 percent of the estimate without the customer’s written consent. Prior law permitted the carrier to “verbally” provide a cost estimate to a prospective shipper either by telephone or in person. Estimates must now be in writing.
In addition to eliminating the filed tariffs, the new rules eliminate a protective notice and disclaimer that a household goods carrier was required to have on every estimate. Previously, by Bureau rule, the estimate was required to advise the shipper that the carrier was not warranting or representing that the actual charges would not exceed the estimate. Further, the written disclaimer notified the shipper that “Household goods carriers are required by law to collect transportation and other incidental charges computed on the basis of rates shown in their lawfully published tariffs, regardless of prior rate quotations or estimates made by the carrier or its agents.” Once the proposed rules become finalized, this disclaimer will no longer apply because filed tariffs will no longer be legally required.
HHG Movers Required to File an Annual Report with the Bureau
Every household goods carrier with an active permit or certificate will be required to file a “Household Goods Carrier Annual Report” annually by July 1st containing the following information:
► Name, address, and telephone number;
► A list of each vehicle to be used in the carriage of household goods;
► A certificate of insurance; and
► The name, title and signature of person completing the form and the date the form was signed under the penalty of unsworn falsification pursuant to R.S.A. 641:3.
Applications for New and Transfers of Authority Required; No Legal Notice of Proposed Action Needed to be Published in Newspaper; No Public Hearing or Intervenors in Opposition
For new authority – whether a permit or certificate, the applicant must complete a “New Household Goods Carrier Operations” application. The application questions differ from prior questions in that the applicant is no longer required to describe proposed regular or irregular routes, to identify competitors, or to present proposed fares and charges (i.e., what was previously called a “tariff” for common carriers of household goods). Unless the applicant is a current holder of a certificate or permit issued by the Bureau, the applicant will be required to include a statement of assets and liabilities as of the date of the application. Applicants are required to list of each vehicle to be used in the carriage of household goods. All other questions and representations on the application for new authority remain substantially the same. The Bureau’s evaluation of the applicant for new authority will be limited to whether the applicant is “willing and able to properly perform the services proposed and to conform to the provisions” of R.S.A. 359-T, Bureau rules and other requirements.[2]
For transfers- defined as situations where the carrier wishes to sell, assign, or transfer its certificate or permit – the transferor must notify the Bureau of the “proposed transaction” and the name of the “prospective transferee.” The Bureau will then require the transferee to complete a “Transfer or Assignment of Household Goods Carrier Operations” application. The Bureau’s evaluation of the proposed transfer will be limited to whether the transferee is “willing and able” and “has complied with relevant statutes and [the new proposed] rules.” [3]
Previously, applicants for HHG Common Carrier authority were required to demonstrate at a public hearing and to the Bureau’s satisfaction, that it is fit, willing and able to conduct operations and the authority sought and further, the proposed service “is or will be required by the present or future public convenience and necessity.” Previously, applicants for HHG Contract Carrier authority was also required to demonstrate that it is fit, willing and able to properly perform the service and “will be consistent with the public interest.”[4],[5] These standards, constructed primarily to protect the economic well being of the incumbent carriers, have been eliminated.
Publication of notice of hearing in the legal notice section of a newspaper and a public hearing on an application for new or transferred authority is no longer a legal requirement for approval of the authority sought.
It is clear that New Hampshire is taking an aggressive stand by repealing R.S.A. 375-A – a law that has been in place since the 1960s. The new law (R.S.A. 359-T) and rules strengthen consumer protections and promotes free enterprise and the market economy by eliminating barriers to entry and obsolete licensure restrictions for household goods transportation by for-hire carriers.
Dated: Sudbury, MA
May 12, 2023
Andresen & Borovick, LLP
323 Boston Post Road
Sudbury, Massachusetts 01776
www.abmasslaw.com
Tel: (978) 443-6868
borovick@abmasslaw.com
The foregoing is designed to provide general information based on a summary of legal principles for clients and friends of the firm. It is not intended to be construed as legal advice, or legal opinion on any specific facts or circumstances. Companies and individuals should consult with legal counsel before taking any action based on these principles to ensure their applicability in a given situation. The information presented here and on our website should not be construed to be legal advice or the formation of a lawyer/client relationship. Copyright © 2023 Andresen & Borovick, LLP. All rights reserved.
[1] Interim Carriage of Household Goods by Motor Vehicles, Rule No. Saf-C 9100 et seq. Proposed Interim Rule No. 2023-1 filed Mar. 22, 2023. See R.S.A. 359-T:14.II(d). The statute defines who is and who is not deemed a “household goods carrier.” A household goods carrier is a common or contract carrier which transports for hire by motor vehicle between points in New Hampshire: (a) personal effects and property used or to be used in a dwelling as a part of the equipment or supply of the dwelling; (b) furniture, fixtures, equipment, and property of any establishment, which are a part of the stock, equipment or supply of the establishment; or (c) articles, including objects of art, displays and exhibits with an unusual nature or value, which require specialized handling and equipment usually used in moving household goods. A household goods carrier does not include any person who transports his or her own goods for the purpose of sale or delivery, or in the furtherance of a trade or business other than transportation. See definition of “household goods carrier” in R.S.A. 359-T:1.II and III.
[2] R.S.A. 359-T:3.
[3] Saf-C 9102.06.
[4] R.S.A. 375-A:3 (certificate), A:4-a (permit). Applicants were required to present evidence at a public hearing supporting “public convenience and necessity” and “public interest.” Saf-C 4605.01, Saf-C 4605.02.
[5] For common carrier applicants, publication was pursuant to DOS Road Toll Bureau Application Checklist for Intrastate Operating Authority and the hearing pursuant to Saf-C 4605.01(b). For contact carrier applicants, publication was pursuant to DOS Road Toll Bureau Application Checklist for Intrastate Operating Authority and the hearing pursuant to Saf-C 4605.02(b).