Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders; Small Business in Transportation Coalition (SBTC) Exemption Application

Larry W. Minor
Federal Motor Carrier Safety Administration
10 April 2020

[Federal Register Volume 85, Number 70 (Friday, April 10, 2020)]
[Notices]
[Pages 20334-20335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07539]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2020-0239]


Registration and Financial Security Requirements for Brokers of 
Property and Freight Forwarders; Small Business in Transportation 
Coalition (SBTC) Exemption Application

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: FMCSA announces that the Small Business in Transportation 
Coalition (SBTC) seeks reconsideration of an August 14, 2013, 
application by the Association of Independent Property Brokers and 
Agents (AIPBA) for an exemption from the $75,000 bond requirement for 
all property brokers and freight forwarders. FMCSA denied the AIPBA 
application on March 31, 2015, and treats the SBTC request as a new 
exemption application. FMCSA requests public comment on SBTC's 
application.

DATES: Comments must be received on or before May 11, 2020.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2020-0239 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Docket Management Facility, 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: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
     Each submission must include the Agency name and the 
docket number for this notice. Note that DOT posts all comments 
received without change to www.regulations.gov, including any personal 
information included in a comment. Please see the Privacy Act heading 
below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. To be sure someone is there to help you, 
please call (202) 366-9826 before visiting the DOT Docket Room.
    Privacy Act: DOT posts public 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 FDMS), which can 
be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: (202) 366-4325; Email: MCPSD@dot.gov. If 
you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2020-0239), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. 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 the Agency can contact you if it has questions 
regarding your submission.
    To submit your comments online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2020-0239'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party and then submit. 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. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope. FMCSA will consider all comments and material received 
during the comment period and may grant or not grant this application 
based on your comments.

II. Legal Basis

    Under Section 32918 of the Moving Ahead for Progress in the 21st 
Century Act, Public Law 112-141, 126 Stat. 405 (MAP-21), all brokers 
and freight forwarders subject to FMCSA's jurisdiction must maintain 
$75,000 in financial security. 49 U.S.C. 13906(b)(3), (c)(4). Such 
financial security must be in the form of a surety bond or trust fund. 
49 CFR 387.307(a); 49 CFR 387.403T(c). Under 49 U.S.C. 13541(a), the 
Secretary of Transportation (Secretary) ``shall exempt a person, class 
of persons, or a transaction or service from the application, in whole 
or in part, of a provision of [49 U.S.C. Part B (Chapters 131-149)], or 
use this exemption authority to modify the application of a provision 
of [49 U.S.C. Part B (Chapters 131-149)] as it applies to such person, 
class, transaction, or service when the Secretary . . . finds that the 
application of that provision:
    (1) Is not necessary to carry out the transportation policy of [49 
U.S.C. ]13101;
    (2) is not needed to protect shippers from the abuse of market 
power or that the transaction or service is of limited scope; and
    (3) is in the public interest.''

49 U.S.C. 13541(a).
    In a September 10, 2019, letter to FMCSA (SBTC Petition for 
Exemption), SBTC seeks a 5-year exemption from the $75,000 financial 
security requirements at 49 U.S.C. 13906(b) and (c) for certain small 
business brokers and freight forwarders with revenues below $15.01

[[Page 20335]]

million.\1\ Section 13906 is located in 49 U.S.C. Part B (Chapter 139) 
and therefore may be considered within the general scope of the 
Agency's exemption authority under section 13541.\2\ The Secretary may 
begin a section 13541 exemption proceeding on the application of an 
interested party or on the Secretary's own initiative. 49 U.S.C. 
13541(b). The Secretary may ``specify the period of time during which 
an exemption'' is effective and may revoke the exemption ``to the 
extent specified, on finding that application of a provision of [49 
U.S.C. Chapters 131-149] to the person, class, or transportation is 
necessary to carry out the transportation policy of [49 U.S.C.] section 
13101.'' 49 U.S.C. 13541(c), (d). In addition, the exemption authority 
provided by section 13541 ``may not be used to relieve a person from 
the application of, and compliance with, any law, rule, regulation, 
standard, or order pertaining to cargo loss and damage [or] insurance . 
. .'' 49 U.S.C. 13541(e)(1).
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    \1\ SBTC Petition for Exemption, at 10.
    \2\ SBTC styles its request as a resubmission of an exemption 
request pursuant to 49 U.S.C. 31315(b)(3) and 49 CFR 381.317. 
Section 31315 of title 49 and 49 CFR part 381 apply to exemptions 
from 49 U.S.C. Chapter 313, 49 U.S.C. 31136 and from rules issued 
under those statutes, however. FMCSA therefore has no jurisdiction 
to entertain a resubmission of AIPBA's exemption request under 
section 31315(b)(3) and section 381.317, as the requirements SBTC 
seeks exemption from are not within Chapter 313 or Section 31136. 
However, instead of dismissing SBTC's request, FMCSA will treat 
SBTC's request as a new request for exemption under section 13541 
and consider it under that applicable statutory provision.
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    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.87 to carry out the functions vested in the Secretary by 49 
U.S.C. 13541.

III. Background

    On July 6, 2012, the President signed into law MAP-21, which 
included a number of mandatory, non-discretionary changes to FMCSA 
programs. Some of these changes amended the financial security 
requirements applicable to property brokers and freight forwarders 
operating under FMCSA's jurisdiction. MAP-21 Sec.  32918, (codified at 
49 U.S.C. 13906(b) and (c)). More specifically, 49 U.S.C. 13906(b) and 
(c) require brokers and freight forwarders to provide evidence of 
minimum financial security in the amount of $75,000. On October 1, 
2013, FMCSA issued regulations requiring brokers and freight forwarders 
to have a $75,000 surety bond or trust fund in effect. 49 CFR 
387.307(a), 387.403(c). 78 FR 60226, 60233. The 11th Circuit Court of 
Appeals dismissed AIBPA's Administrative Procedure Act challenge to the 
rule, AIPBA v. Secretary, U.S. Department of Transportation, 13-15238 
(11th Cir. Mar. 18, 2016), and the United States District Court for the 
Middle District of Florida dismissed a separate AIPBA challenge to the 
constitutionality of the statute. AIPBA v. Foxx, 5:15-cv-00038-JSM-PRL 
(M.D. Fla. July 15, 2015).
    On December 26, 2013, FMCSA requested public comment on the August 
14, 2013, AIPBA application for an exemption for all property brokers 
and freight forwarders from the requirement for a $75,000 surety bond 
or trust fund (78 FR 78472). Specifically, FMCSA requested comments on 
whether the Agency should grant or deny AIPBA's application, in whole 
or in part. The Agency also requested comments on how it should apply 
49 U.S.C. 13541(a) (1-3) to AIPBA's request. 78 FR at 78473.
    On March 31, 2015 (80 FR 17142), FMCSA published a Federal Register 
notice denying AIPBA's request.\3\ The Agency concluded that the 
exemption should be denied on the basis that 49 U.S.C. 13541 does not 
give FMCSA the authority to essentially nullify a statutory provision 
by exempting the entire class of persons subject to the provision. 80 
FR at 17145. Furthermore, even if the Agency had the authority to issue 
such a blanket exemption, AIPBA's exemption application did not meet 
the factors provided in section 13541 because (1) the new $75,000 bond 
requirement is necessary to carry out the National Transportation 
Policy at 49 U.S.C. 13101, (2) there has been no showing that the 
$75,000 requirement ``is not needed to protect shippers from the abuse 
of market power,'' and (3) the requested exemption is not in the public 
interest. Id. at 17147.
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    \3\ AIPBA did not appeal FMCSA's decision as required within the 
60-day limitations period in 28 U.S.C. 2344.
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    On Sept. 10, 2019, SBTC submitted its current request for a 5-year 
exemption from the $75,000 broker/freight forwarder financial 
responsibility requirement for those brokers and freight forwarders 
with revenues under $15.01 million.

Request for Comments

    FMCSA requests public comment on the SBTC exemption application. A 
copy of SBTC's exemption application is included in the public docket 
referenced at the beginning of this notice. Specifically, FMCSA 
requests comments on whether the Agency should grant or deny the 
application, in whole or in part. The Agency also requests comments on 
how it should apply 49 U.S.C. 13541(a)(1-3) to SBTC's request. 
Commenters are encouraged to provide data or information concerning the 
impact of the financial security requirements and/or the impact of 
granting this exemption request on motor carriers, brokers, freight 
forwarders and shippers.

Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2020-07539 Filed 4-9-20; 8:45 am]
 BILLING CODE 4910-EX-P