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Definitions of Broker and Bona Fide Agents Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutchinson Date: 8 March 2023 Subjects: American Government  , Trucking
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[Federal Register Volume 88, Number 45 (Wednesday, March 8, 2023)]
[Proposed Rules]
[Pages 14322-14323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04717]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 371
[Docket No. FMCSA-2022-0134]
Definitions of Broker and Bona Fide Agents
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notification of interim guidance; reopening of comment period.
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SUMMARY: FMCSA is reopening the comment period for its interim
guidance, Definitions of Broker and Bona Fide Agents. The interim
guidance informs the public and regulated entities about FMCSA's
interpretation of the definitions of broker and bona fide agents as it
relates to all brokers of transportation by commercial motor vehicle.
FMCSA is taking this action to better define the terms in response to a
mandate in the Infrastructure Investment and Jobs Act (IIJA). After
consideration of public comments received, FMCSA provided clarification
on its interpretation of the definitions of broker and bona fide
agents, in addition to meeting other criteria required by the IIJA.
While the interim guidance was effective immediately upon publication,
FMCSA sought comments to the interim guidance and will issue final
guidance by June 16, 2023. FMCSA is reopening the comment period in
anticipation of hosting a public listening session allowing comments on
this topic. FMCSA will host the session at 10 a.m. on March 31, 2023,
in Louisville, KY, and concurrently with the Mid America Trucking Show
(MATS). Anyone wishing to attend can register at: https://www.eventbrite.com/e/fmcsa-session-2-broker-regulatory-session-tickets-549535173497. In addition, a transcript of the public listening session
will be placed in the guidance docket.
DATES: The comment period for the interim guidance published on
November 16, 2022, at 87 FR 68635, will be reopened on March 31, 2023.
Comments must be received on or before April 6, 2023.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0134 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0134/document. Follow the online
instructions for submitting comments.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey L. Secrist, Chief,
Registration, Licensing, and Insurance Division, Office of
Registration, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001; (202) 385-2367; Jeff.Secrist@dot.gov. If you have questions on
viewing or submitting material to the docket, call Dockets Operations
at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number FMCSA-
2022-0134 for this notice, indicate the specific section of the
guidance to which your comment applies and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so FMCSA can contact you if there are questions regarding your
submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0134/document, click on this notification, click
``Comment,'' and type your comment into the text box on the following
screen.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the interim guidance contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, it is important that you clearly
designate the submitted comments as CBI. Please mark each page of your
submission that constitutes CBI as ``PROPIN'' to indicate it contains
proprietary information. FMCSA will treat such marked submissions as
confidential under the Freedom of Information Act, and they will not be
placed in the public docket of the interim guidance. Submissions
containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory
Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 or via email at brian.g.dahlin@dot.gov.
At this time, you need not send a duplicate hardcopy of your electronic
CBI submissions to FMCSA headquarters. Any comments FMCSA receives not
specifically designated as CBI will be placed in the public docket for
this rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2022-0134/document and
choose the document to review. To view comments, click this
notification of interim guidance, then click ``Browse Comments.'' If
you do not have access to the internet, you may view the docket online
by visiting Dockets Operations in Room W12-140 on the ground floor of
the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. To be sure someone is there to help you, please call (202)
366-9317 or (202) 366-9826 before visiting Dockets Operations.
C. Privacy Act
In accordance with its regulatory procedures and policies, DOT
solicits
[[Page 14323]]
comments from the public to better inform its regulatory process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov. As described in the
system of records notice DOT/ALL 14 (Federal Docket Management System
(FDMS)), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments
are searchable by the name of the submitter.
II. Background
The November 16, 2022, notification of interim guidance (87 FR
68635) requested comment on FMCSA's interpretation of the term broker,
which is defined in 49 CFR 371.2(a) as a ``person who, for
compensation, arranges, or offers to arrange, the transportation of
property by an authorized motor carrier. Motor carriers, or persons who
are employees or bona fide agents of carriers, are not brokers within
the meaning of this section when they arrange or offer to arrange the
transportation of shipments which they are authorized to transport and
which they have accepted and legally bound themselves to transport.''
The interim guidance also requested comment on FMCSA's
interpretation of the term bona fide agent, which is defined as
``persons who are part of the normal organization of a motor carrier
and perform duties under the carrier's directions pursuant to a
preexisting agreement which provides for a continuing relationship,
precluding the exercise of discretion on the part of the agent in
allocating traffic between the carrier and others'' (49 CFR 371.2(b)).
Section 23021 of the IIJA (Pub. L. 117-58, 135 Stat. 429) directed
the Secretary (through FMCSA) to issue this guidance, taking into
consideration the extent to which technology has changed the nature of
freight brokerage, the role of bona fide agents, and other aspects of
the freight transportation industry. Additionally, when issuing the
guidance, Congress directed that FMCSA must, at a minimum: (1) examine
the role of a dispatch service in the transportation industry; (2)
examine the extent to which dispatch services could be considered
brokers or bona fide agents; and (3) clarify the level of financial
penalties for unauthorized brokerage activities under 49 U.S.C. 14916,
applicable to a dispatch service (87 FR 68635).
The comment period for the interim guidance closed on January 17,
2023. However, FMCSA will host a public listening session on issues
related to brokers on March 31, 2023, concurrent with the 2023 MATS
conference. Therefore, FMCSA believes it is in the interest of the
public to reopen the comment period so FMCSA may consider comments on
the guidance made at the session and for a short period thereafter.
Accordingly, FMCSA is reopening the comment period on the date of the
session, March 31, 2023, and will accept additional comments until
April 6, 2023.
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-04717 Filed 3-7-23; 8:45 am]
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