In 2023, the Bureau of Road Toll, a division within the NH Department of Safety (the “Bureau”), filed proposed administrative rules it deemed necessary to regulate household goods carriers in New Hampshire in accordance with new chapter RSA 359-T – Carriage of Household Goods for Hire by Motor Vehicle. The proposed rules were considered and readopted with amendment by the NH Joint Legislative Committee on Administrative Rules at the end of 2023. As we reported previously, the New Hampshire Legislature repealed the existing household goods statute (RSA 375-A) and enacted a new statutory scheme which significantly deregulated the licensure and rate-regulation of for-hire carriage of household goods by eliminating certain public utility requirements and bolstering consumer protections.[1]
On May 7, 2024, the final version of the mover rules (Chapter Saf-C 4600) were certified by the NH Administrative Rules Office, published to the official website for administrative rules May 8th and are available here. Following publication, the Bureau updated its website linking to the final mover rules and annual reporting form and other documents.
The following summary of the new rules, as finalized, is intended to alert New Hampshire movers of some of the more noteworthy changes relative to move estimates, rates and billing, complaints and revocations, carrier annual reports, vehicle registration 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HHG Tariffs – Repealed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 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 With this change, New Hampshire has legislatively repealed a legal doctrine first created at the Federal level to regulate interstate transportation and later adopted by the States, including New Hampshire governing a motor carrier’s 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 in New Hampshire 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
Prior Law
In addition to eliminating 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.” The verbiage is no longer pertinent. Tariffs are no longer accepted for filing; there is no mechanism under the law to “lawfully publish[]” an intrastate household goods carrier tariff in New Hampshire. The new rules dictate what a mover can charge and under what circumstances additional charges may be assessed.
New Law
The new rules require that, upon the request of any customer, a household goods carrier must provide a written estimate of cost to the customer prior to performing any service. The 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. Only if the prospective shipper requested an estimate, was the carrier required to furnish one in writing. Estimates must now be in writing containing the new disclosure statement and the final charges cannot exceed the written estimate by more than 10 percent unless the shipper consents to the amount in excess of 10 percent and such consent is in writing.
The estimate must also contain a statement that the carrier shall notify the customer of the estimated cost of any additional services of an unrelated and different nature from the work originally itemized in the estimate and shall receive the customer’s written or oral permission to proceed before performing such additional service.
In addition, the carrier must itemize the service to be performed with applicable charges, indicate an estimated completion date, and provide an estimate of the total of all charges. The new rules provide unique requirements on the form and content of estimate depending on whether the move is rated on an hourly or weight and mileage basis. There are other requirements as well.
HHG Rates and Billing
Rates must be stated in dollars and cents regardless of whether calculated per pound, per mile, per package or per hour. Rates and commodity descriptions must be clear so the applicable rate is easily determined. If there is a conflict in interpreting provisions relative to application of rates, the provision or rate resulting in the lowest charge is required to be assessed.
A carrier’s bill for services must include: (1) the name and address of the carrier and shipper; (2) date(s) services performed; (3) points between which the services were rendered; and (4) each item for which a rate is applied, as well as the corresponding rate applied for such item.
Complaints, Hearings and Revocation
Complaints against a carrier must be in writing, filed with the Bureau and are subject to investigation. If, after investigation, a complaint is substantiated and the commissioner of the department of safety, or his designee, concludes there is a statutory basis for administrative hearing, the parties will be notified and a hearing will be scheduled. The hearing shall be conducted pursuant to the practices and procedures for administrative hearings conducted by the commissioner of the New Hampshire Department of Safety.
After notice, hearing and a finding of failure to comply with the new statute or new rules, a carrier’s certificate or permit “shall” be revoked.[2]
HHG Annual Report to be Filed with the Bureau
Every household goods carrier with an active permit or certificate must file form DSAD 5-HAR “Household Goods Carrier Annual Report” annually by July 1st containing and including with the form the following information:
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Legal name, NH carrier certificate number, whether carrier is a natural person, partnership or corporation, mailing address by street and number and name and telephone number of carrier’s primary contact; |
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A list of all of vehicles to be used in the carriage of household goods including the state the vehicle is registered in, the registered vehicle’s corresponding license plate number, the registered vehicle’s corresponding carrier plate number, the year, make and model of the vehicle, the vehicle’s gross vehicle weight rating, whether or not the vehicle is used in combination with a trailer, the total combined GVWR of the vehicle and trailer, and the vehicle’s identification number; |
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Attach a certificate of insurance which is required to identify an insurer licensed to do business in New Hampshire listing either a cargo insurance policy or indemnity bond which must be in force and have coverage not less than $.60 per pound of registered load carrying capacity of any vehicle used in the Carrier’s business; and |
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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 RSA 641:3. |
Note, apart from the annual report, if the carrier conducts business using a trade name which is different from its legal name, a copy of the certificate of registration of trade name issued by the NH Secretary of State must be filed with the Bureau. The new rules state a carrier shall not conduct business under any trade name in New Hampshire until the certificate has been filed with the Bureau.
HHG Vehicle Registration
Each carrier with an active permit or certificate shall register with the NH DOS Division of Motor Vehicles each vehicle used in the performance of service as a household goods carrier vehicle annually.
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). Presently, the application form on the Bureau’s website states unless the applicant is a current holder of a “Passenger carrier” 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 service proposed and to conform to the provisions of RSA 359-T, Bureau rules and regulations issued by the Commissioner of the NH DOS.
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.
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.”[3],[4] These standards, constructed primarily to protect the economic wellbeing 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.
Other Matters
The new rules address other matters including government access to records, vehicle placarding, vehicle leasing, change of address and voluntary suspensions of authority.
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 statutory authority 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
June 11, 2024
Andresen & Borovick, LLP
323 Boston Post Road
Sudbury, Massachusetts 01776
www.abmasslaw.com
Tel: (978) 443-6868
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 © 2024 Andresen & Borovick, LLP. All rights reserved.
[1] See new Chapter 359T – Carriage of Household Goods for Hire by Motor Vehicle (RSA 359-T:1 – T:19). New Hampshire House Bill 207-FN – An Act Repealing the Regulation of Household Goods Carriers. 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 RSA 359-T:1.II and III.
[2] New Saf-C 4604.03 Revocation.
[3] 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, Saf-C 4603.01(a)-(g) see source Docs. #5852, eff. 6-23-94; ss by #7240, eff. 6-23-00.
[4] 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).