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TITLE Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Meera Joshi Date: 16 December 2021 Subjects: American Government  , Trucking
Topic: Small Business in Transportation Coalition |
[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Notices]
[Pages 71538-71542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27220]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2020-0130]
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 final disposition; denial of application for
exemption.
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SUMMARY: FMCSA denies an application from the Small Business in
Transportation Coalition (SBTC) seeking reconsideration of the Agency's
March 31, 2015 denial of the Association of Independent Property
Brokers and Agents' (AIPBA) application for an exemption from the
$75,000 bond requirement for all property brokers and freight
forwarders. FMCSA treats the SBTC request as a new exemption
application. After reviewing SBTC's application and the public
comments, the Agency has concluded that the exemption request should be
denied because it does not meet the statutory factors for an exemption.
DATES: FMCSA denies this application for exemption effective December
16, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Associate
Administrator for Policy, FMCSA; Telephone: (202) 366-4012; Email:
MCPSD@dot.gov. If you have questions on viewing or submitting material
to the docket, contact Dockets Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, go to www.regulations.gov, insert the docket
number ``FMCSA-2020-0130'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, click ``Browse Comments.''
To view documents mentioned in this notice as being available in
the docket, go to www.regulations.gov, insert the docket number
``FMCSA-2020-0130'' in the keyword box, click ``Search,'' and choose
the document to review.
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
[[Page 71539]]
20590, 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) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
II. Legal Basis
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. subtitle IV, part B (chapters 131-149)], or use this
exemption authority to modify the application of a provision of [49
U.S.C. subtitle IV, 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.] section 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.''
The Secretary may begin a section 13541 exemption proceeding on the
application of an interested party or on the Secretary's own
initiative. 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).
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. Current Legal Requirements
Under 49 U.S.C. 13906(b) and (c), as amended by 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.
The financial security must be in the form of a surety bond or trust
fund in accordance with 49 CFR 387.307(a), 387.403T(c).
IV. Background
On December 26, 2013, FMCSA requested public comment on AIPBA's
August 14, 2013 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. Id. at 78473.\1\
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\1\ In 2013, AIPBA also sought judicial review in the U.S. Court
of Appeals for the Eleventh Circuit of the FMCSA final rule that
implemented MAP-21's $75,000 bond requirement. AIPBA alleged that
FMCSA had improperly promulgated the rule without notice and
comment. The court dismissed the petition, holding that AIPBA lacked
standing. Ass'n of Indep. Prop. Brokers and Agents v. Sec'y, U.S.
Dep't of Transp., et al. (11th Cir. Mar. 18, 2016).
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On March 31, 2015, FMCSA published a Federal Register notice
denying AIPBA's request. 80 FR 17142. The Agency concluded that the
exemption should be denied on the basis that 49 U.S.C. 13541 does not
give FMCSA the authority essentially to nullify a statutory provision
by exempting the entire class of persons subject to the provision. Id.
at 17145. Furthermore, even if the Agency had the authority to issue
such a blanket exemption, FMCSA found that the $75,000 bond requirement
was ``necessary to carry out the transportation policy of section
13101,'' was ``needed to protect shippers from the abuse of market
power,'' and that an exemption was not in the public interest. Id.
AIPBA did not appeal FMCSA's decision to federal court within the 60-
day limitations period of 28 U.S.C. 2344.
V. Applicant's Request
In its application,\2\ SBTC seeks a 5-year exemption from the
$75,000 financial security requirements of 49 U.S.C. 13906(b) and (c),
specifically for brokers and freight forwarders with annual revenues
below $15.010 million.\3\ SBTC believes granting the exemption ``is in
the public interest'' as it will ``ensure an uninterrupted supply
chain.'' \4\ Moreover, SBTC indicates that the current bond level
impedes small motor carriers from adding brokerage operations to their
business.\5\ Further, SBTC states that ``FMCSA needs to address the
fact that 10,000 small business intermediaries, including members of
the minority brokerage community, were revoked in the first two weeks
of December 2013 and there are anti-competitive obstacles to entry
currently in place due to a bond obviously set too high for over 40% of
the brokerage industry to handle in 2013.'' \6\ Finally, SBTC argues
that its exemption request should be granted ``to give FMCSA more time
to develop its `comprehensive enforcement program' \7\ to enforce the
licensing and bonding requirement.'' \8\
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\2\ As noted in FMCSA's Federal Register publication, SBTC
styled its request as a resubmission of an exemption request
pursuant to 49 U.S.C. 31315(b)(3) and 49 CFR 381.317. As SBTC's
request did not fall within those provisions, FMCSA had no
jurisdiction to entertain SBTC's request under that authority. 85 FR
20334, 20335 n.2. Rather than dismissing SBTC's request, the Agency
treated SBTC's request as a new request for exemption under Section
13541, the provision under which AIPBA's request was filed and which
SBTC's should have been filed as well. SBTC has had ample
opportunity to contest FMCSA's decision to treat its request as a
new exemption application and it has not done so. SBTC's
application, which applies to a more limited set of brokers and
freight forwarders and a more limited time period than AIPBA's did,
is a new request for exemption, rather than a resubmission, and will
be assessed on that basis.
\3\ SBTC Application at 10.
\4\ Id. at 5.
\5\ Id.
\6\ Id. at 14.
\7\ In a 2013 Federal Register Notice, FMCSA indicated it would
``phase in its enforcement of the broker registration requirements
for motor carriers that also broker loads.'' 78 FR 54720, 54722
(Sept. 5, 2013). MAP-21 required motor carriers to obtain broker
authority for their brokerage operations. Id. at 54720.
\8\ SBTC Application, at 4.
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During the public comment period on this request, SBTC submitted a
comment in response to a comment filed by the Transportation
Intermediaries Association (TIA). SBTC indicated that the increase in
the number of FMCSA-registered transportation intermediaries since
December 2013 is attributable to a separate MAP-21 requirement
mandating motor carriers to obtain brokerage licenses before performing
brokerage services, rather than to broker licenses being issued to
``new mom and pop small business brokers. . . .'' \9\ Moreover, SBTC
indicated that the factoring industry alleviates concerns pertaining to
``underfunded'' brokers. SBTC asserts that ``[m]ost factors actually
pay the carriers directly before paying their broker clients making a
bond not needed for the smallest of brokers.'' \10\
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\9\ SBTC May 29 comments, at 3.
\10\ Id. at 4. SBTC also sought leave to late file a comment
dated June 5, 2020 to respond to comments filed by the Motor Carrier
Regulatory Reform Coalition. FMCSA accepts the late-filed comment
for consideration but does not believe its contents, which pertain
to ``dispatch services,'' are relevant to this proceeding. MCRR late
filed a June 10, 2020 response to SBTC's letter and FMCSA will
accept that letter in the docket as well.
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[[Page 71540]]
VI. Public Comments
On April 10, 2020, FMCSA requested public comment on SBTC's
exemption application. 85 FR 20334.\11\ Specifically, FMCSA requested
comments on whether the Agency should grant or deny the 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 SBTC's request. 85 FR at 20335. In
addition to SBTC's comments, which are discussed above, the Agency
received 22 comments in response to the Federal Register notices.
Seventeen commenters opposed the request for exemption. Five commenters
did not directly address the request, with two of those commenters
expressing general opposition to the broker bond. The commenters are:
Amy Bourne, James Anonymous, Stephen Oatley, Navpreet Khaira, Jas
Pannu, Amandeep Ghuman, Brian Klink, Don Juan, Rajdeep Singh, Patricia
Newkirk, Melissa Carbonell, Jim Asad, Lisa Schmitt, Small Business in
Transportation Coalition (SBTC), JW Surety Bonds, Motor Carrier
Regulatory Reform (MCCR Coalition),\12\ Owner-Operator Independent
Drivers Association (OOIDA), American Trucking Associations (ATA), The
Surety & Fidelity Association of America (SFAA), Transportation and
Logistics Council, Inc. (TL Council), TIA, and two anonymous
commenters.
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\11\ On May 4, 2020, FMCSA corrected the public docket number
referenced in its April 10 notice and extended the public comment
period until June 3, 2020. 85 FR 26516.
\12\ MCRR Coalition is composed of Air & Expedited Motor Carrier
Association (AEMCA), Alliance for Safe, Efficient and Competitive
Truck Transportation (ASECTT), American Home Furnishings Alliance
(AHFA)/Specialized Furniture Carriers, Apex Capital Corp., Auto
Haulers Association of America (AHAA), National Association of Small
Trucking Companies (NASTC), The Expedite Alliance of North America
(TEANA) and the Transportation Loss Prevention & Security
Association (TLP&SA).
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Specific Comments by Opponents of SBTC's Application
FMCSA provides a sampling of comments provided by opponents of
SBTC's application below.
ATA indicated that granting SBTC's request would deprive motor
carriers of the bond protection where it is most needed--in dealings
``with brokers who turn out to be financially precarious.'' \13\ ATA
also indicated that if FMCSA had the authority to decide this
exemption, which it questions due to Separation of Powers concerns,
SBTC's request does not meet the standard pursuant to 49 U.S.C.
13541.\14\
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\13\ Comments of the American Trucking Associations (ATA), at 2.
\14\ Id. at 2-3.
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TL Council, whose members include approximately 300 shippers,
carriers, transportation intermediaries and other transportation
service providers, described concerns over ``unfit or illegal
operators'' and stated that ``the Exemption Application should be
denied.'' \15\
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\15\ Comments of the Transportation and Logistics Council, Inc.
at 2.
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JW Surety Bonds (JW Surety) stated, ``The SBTC seeks a frictionless
environment for freight brokers to transact business without the need
of financial security in the $75,000 bond without taking into
consideration the consequences if such an exception was granted. The
surety bond industry which issues the BMC-84 product has paid more than
$3 [m]illion in claims to carriers and shippers which licensed freight
brokers had defaulted upon their obligations for payment. Most recently
during the COVID crisis, we have only seen claim occurrences increase.
Our estimates for 2020, are that the surety industry will pay out $3.2-
$3.5 [m]illion in carrier claims on freight brokers.'' \16\ JW Surety
also indicated that surety bonds are not a barrier to entry for
legitimate brokers and that surety premiums are consistently low.
According to JW Surety, ``exemption of the bond requirement would be of
greatest benefit to repeat offenders that are regularly in breach of
their payment commitments harming carriers.'' \17\
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\16\ Comments of JW Surety Bonds, at 1.
\17\ Id.
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OOIDA stated, ``FMCSA must deny any exemptions that would weaken
current broker bond standards and further defraud professional truck
drivers and motor carriers from their rightful compensation.'' \18\
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\18\ Comments of the Owner-Operator Independent Drivers
Association, at 3.
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SFAA explained, ``The bonds required under 49 U.S.C. 13906 are
intended to ensure that commercial entities, such as motor carriers and
shippers, are protected if the freight forwarder fails to pay freight
charges under its contracts, agreements or arrangements for
transportation. The protections for shippers and carriers, who may also
be small businesses themselves, should not be sacrificed in the
interest of the Small Business [in] Transportation Coalition. The loss
experience from this type of bond demonstrates it is serving its
intended purpose, which Congress believed was necessary when it raised
the bond requirement to $75,000.'' \19\ SFAA further indicated that the
increased bond amount has not had an impact on the availability of
surety bonds ``for small businesses operating as forwarders or
brokers.'' \20\
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\19\ Comments of the Surety & Fidelity Association of America,
at 1.
\20\ Id. at 3.
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TIA indicated that ``the requested exemption would frustrate
Congress's intent to protect payments to motor carriers and prevent
unauthorized brokering.'' \21\
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\21\ Comments of the Transportation Intermediaries Association,
at 4.
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MCRR Coalition included statements from its member associations in
opposition to SBTC's request. Tom Ogrodowski, of the Auto Haulers
Association of America, stated that the increased bond requirement has
not hindered the growth of brokers in the auto hauler sector.\22\ In an
affidavit, David Gee, President of the Alliance for Safe, Efficient and
Competitive Truck Transportation (ASECTT), indicated that the price of
a broker bond ``has crashed'' since 2013 where ``with a personal
guarantee by the owner, a yearly bond cost of approximately $2,000 or
less is involved.'' \23\ And, in an affidavit, David Owen, the
President of the National Association of Small Trucking Companies
(NASTC), a 12,000 member organization ``the vast majority of which are
small motor carriers operating less than 20 trucks,'' indicated that
``[o]ur initial fear that the bonding amount would be cost prohibitive
for small brokers and have an anti-competitive effect on the industry
did not come to pass. Our experience in helping new members shows that
bonds from reputable sureties are available and commercially
reasonable.'' \24\
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\22\ Comments of the Motor Carrier Regulatory Reform Coalition,
Statement of Tom Ogrodowski.
\23\ Comments of the Motor Carrier Regulatory Reform Coalition,
Affidavit of David Gee, at 1.
\24\ Comments of the Motor Carrier Regulatory Reform Coalition,
Affidavit of David Owen, at 1.
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Melissa Carbonell wrote, ``We are a broker and have been since
2006. We were also a carrier for a few years so we know both sides of
this story. We have watched brokers get licenses, get cheap bonds, rack
up large carrier bills and then go out of business and the carriers
never get paid. The broker will restart another license and cheap bond
and do it all over again! $10,000 is not enough to cover sometimes 3
freight bills. The bond needs to stay $75,000. We have $10,000 in a
trust account and only pay $2,500 a year for our broker bond. Any
broker doing more than $1 Million a year in business should be able to
afford this amount! If they can't afford the bond then they are not
solvent enough to be getting hundreds of thousands of dollars in credit
on the backs of carriers. Please keep the broker bond the same! Please
do not lower the broker bond!''
[[Page 71541]]
Brian Klink stated: ``Having worked in the industry when the bond
requirement was only $10,000, there was rampant abuse of the system
that had an adverse [e]ffect primarily on small, non-fleet trucking
companies. The MAP-21 protections which required among other things the
bond face amount be increased to $75,000 was a positive step in
limiting the `here today, gone tomorrow' freight broker market. There
are adequate resources available online to determine the financial
stability of Property Brokers and Freight Forwarders which is yet
another step in the right direction. Enforcement of the current
regulations against those scamming the system needs to be enhanced
rather than opening the door leaving little or no protection for the
trucking industry as is being proposed here.''
Patricia Newkirk said, ``We are STRONGLY AGAINST ANY exemptions
from the Broker Surety Bond. As a small carrier and a small broker we
understand the importance of having a fail safe against disreputable
brokers failing to pay. Our premium for our bond is $1,600 per year.
When you calculate that on a daily cost of operation, 261 working days
per calendar year, its $6.13 per day. It is not an unreasonable burden[
] when you look at the cost to small carriers when brokers open, double
broker and close the doors in a few months. We have filed against
broker bonds 3 times in the past 10 years, once declined because it was
inTRAstate commerce, once paid by bond and finally paid by the broker
at 140 days past due AFTER we contacted their bonding agent. If any
changes are brought to the Surety bond, an increase would actually be
more fitting.''
Stephen Oatley commented, ``As far as the mention of dispatchers, I
agree there is a need for enforcement of these `truck dispatchers' as
many are working as illegal brokers, under the mask of being load
finders for trucking. With that said, removing the bonding requirement
for a freight broker authority will do very little to help the
industry. Saying that the bonding requirement is a `barrier to entry'
is correct and it should be. If an aspiring broker can not afford the
$1,200-$5,000 yearly cost of the bond, they really have no business
being a broker. A broker has a fiduciary duty to pay their carriers,
and it is not cheap.''
Opposition to the Bond
An anonymous commenter wrote, ``The trucking industry has become
more complex than it really needs to be which in turn adds wasted
funds. Bonds such as this force small, honest brokers to close doors
whose hearts are typically [sic] after seeing the truck make adequate
revenue and providing good service to their customer.''
Don Juan commented, ``Prior to the 75K requirement that dollar
figure would be $5,000 to $7,500 in valid claims to trigger a
cancellation. Now with the 75K requirement, that valid claim amount
rises to $35,000 to nearly $60,000 BEFORE a cancellation is made. By
increasing the financial requirement to 75K, in essence crooked brokers
can now rack up almost $40,000 in claims BEFORE their authority is even
jeopardized! Then, when a cancellation IS made on the bond or trust,
they still are LEGALLY allowed to operate for another 30 days before
they have their broker authority revoked. MAP-21 stipulated insurance
limits to be reviewed every 5 years[.] [Seven] years later it has yet
to be reviewed. In the meantime, dispatch services continue to operate
illegally and crooks post loads for $8 a mile with no intention of
paying the carrier. The shipper is ultimately responsible for freight
charges. [L]et them post the financial requirement!''
VII. Agency Decision
The Agency has thoroughly reviewed SBTC's request as well as the
public comments. The Agency is denying SBTC's request as it does not
meet the three-part test for issuance of an exemption pursuant to 49
U.S.C. 13541.
In its request, SBTC does not present a clear argument as to why
its 2019 request for a 5- year exemption for brokers and freight
forwarders with annual revenues below $15.01 million should be granted
pursuant to section 13541. Instead, its argument appears to be limited
to indicating that FMCSA, in its 2015 decision denying AIPBA's request
for an exemption, did ``not offer any rationale or explanation''
besides conclusory statements as to why the granting of an exemption
was not appropriate under section 13541.\25\ SBTC's argument is
factually incorrect. In its 2015 decision, FMCSA provided extensive
analysis showing (1) why AIPBA's application was not in the public
interest, (2) that AIPBA did not show that regulation was not necessary
to protect shippers from the abuse of market power, and (3) that
regulation was necessary to implement the National Transportation
Policy (NTP) of 49 U.S.C. 13101. 80 FR at 17146-17147. Moreover, even
if FMCSA had not carefully analyzed the statutory factors in 2015,
SBTC's arguments related to AIPBA's 2013 exemption request are time
barred. As noted above, AIPBA did not appeal FMCSA's 2015 decision in a
timely manner, nor did it seek any administrative reconsideration of
the Agency's decision for over 4 years. Instead, SBTC sought an
exemption for a more limited group of entities. SBTC's application
fails to address the section 13541 requirements for granting an
exemption, which on its own is grounds for denying the application.
FMCSA nevertheless provides a merit analysis of SBTC's request and
concludes that, while the Agency has authority to grant SBTC's request,
unlike in 2015 when AIPBA sought an exemption for all brokers and
freight forwarders from the bond requirement, the Agency nevertheless
will deny the request, for the reasons discussed below.\26\
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\25\ SBTC Application, at 12.
\26\ In its 2015 Decision, FMCSA indicated that it did ``not
have the authority to effectively nullify a statute by exempting the
entire class of persons subject to the bond requirement.'' 80 FR at
17145. While ATA questions the Agency's authority to entertain this
request, ATA Comments at 2, ``TIA believes the Agency is authorized
to consider SBTC's exemption request.'' TIA comments, at 3.
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First, in order for FMCSA to grant SBTC's exemption request, it
would need to find that, for the next 5 years, the $75,000 bond
requirement, as applied to brokers and freight forwarders with annual
revenues under $15.01 million, ``is not necessary to carry out the
transportation policy of section 13101.'' 49 U.S.C. 13541(a)(1). As
noted above, aside from unsupported arguments challenging FMCSA's 2015
treatment of this issue, SBTC makes no current arguments why regulation
is not necessary to advance the NTP.
To the contrary, and as evidenced by the comments opposing SBTC's
request, the bond is necessary to implement the NTP. The NTP states
that, in overseeing the motor carrier industry, it is the policy of the
federal government to ``meet the needs of shippers'' and to ``enable
efficient and well-managed carriers to earn adequate profits [and]
attract adequate capital. . . .'' 49 U.S.C. 13101 (a)(2)(C),(F). By
providing financial recovery for motor carriers (and shippers) in the
event of broker or freight forwarder non-payment, the $75,000 bond
serves to strengthen the finances of motor carriers and shippers. An
exemption, even a temporary one, from the bond requirement for a wide
swath of the broker and freight forwarder industry, as SBTC requests,
would harm congressional goals. Moreover, as described above, numerous
public comments in the docket support FMCSA's determination that the
$75,000 bond benefits motor carriers.\27\
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\27\ Comments of the Transportation Intermediaries Association,
at 4-5; comments of the Surety & Fidelity Association of America, at
1; comments of JW Surety Bonds, at 1; comments of the Owner-Operator
Independent Drivers Association, at 1-2.
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[[Page 71542]]
Next, for FMCSA to grant an exemption, FMCSA would have to conclude
that the $75,000 bond requirement ``is not needed to protect shippers
from the abuse of market power'' or that the requested exemption is of
``limited scope.'' 49 U.S.C. 13541(a)(2). SBTC, like AIPBA before
it,\28\ did not address the ``limited scope'' provision.\29\ SBTC fails
to argue why in 2019 the broker bond was ``not needed to protect
shippers from the abuse of market power.'' Instead, SBTC states that in
2015 FMCSA did not provide adequate support for its determination that
AIPBA did not make an adequate showing that the broker bond is not
necessary to protect shippers from the abuse of market power.\30\ SBTC
has the burden of showing that regulation is not necessary; it is not
FMCSA's burden to show why regulation is necessary.\31\ Such a standard
would turn the exemption statute on its head and undermine the
Administrative Procedure Act.
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\28\ 80 FR at 17145 n.2.
\29\ While FMCSA need not resolve the issue in today's decision,
the Agency questions whether, in an industry dominated by small
businesses, a 5-year exemption for brokers and freight forwarders
with annual revenues below $15.01 million could fairly be considered
one ``of limited scope.''
\30\ SBTC Application, at 12.
\31\ ATA also noted this burden in its comments. Comments of the
American Trucking Associations, at 3 (``the burden of course is not
on the Agency to demonstrate that the requirement is necessary, but
on SBTC to establish that it is unnecessary.'').
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Finally, in order to grant SBTC's request, FMCSA would need to
determine that its proposed exemption is in the public interest. As the
overwhelming majority of public comments attest,\32\ SBTC has failed to
show that the proposed exemption is in the public interest. Aside from
unsupported statements addressed below, SBTC does not attempt to show
why exempting a large swath of the brokerage and freight forwarder
industries from the $75,000 bond requirement for 5 years is in the
public interest. Instead, SBTC critiques FMCSA for purportedly not
showing how AIPBA's proposed exemption was not in the public
interest.\33\ As noted above, FMCSA provided extensive reasoning as to
why AIPBA's request was not in the public interest in 2015. 80 FR at
17146.
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\32\ FMCSA notes that the unanimity among multiple associations
representing multiple industries in opposition to SBTC's request is
striking.
\33\ SBTC Application, at 12.
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SBTC claims, without offering support, that granting the exemption
``is in the public interest to ensure an uninterrupted supply chain.''
\34\ In reality, as explained above, granting SBTC's request would harm
the finances of motor carriers and therefore interfere with the supply
chain.\35\ Having the bond available benefits motor carriers in the
event of broker or freight forwarder non-payment.\36\ In addition,
SBTC's contentions that (1) the $75,000 bond impedes small carriers'
ability to add brokerage operations,\37\ and (2) ``the current broker
census'' (as of September 2019), which featured an increase in the
number of brokers since an initial decline following the bond increase
in 2013, ``cannot be fairly attributed to a return of these small
business brokers that were utterly decimated in December 2013'' \38\
are unsupported. In fact, commenters point out how the bond requirement
has not harmed small businesses. The MCRR Coalition, an organization
that includes associations with over 15,000 small regulated motor
carriers,\39\ indicated that the argument that the increased bond
amount prejudices small businesses is meritless. The annual surety bond
premium is less than $2,000 on average, according to the MCRR
Coalition.\40\ David Owen, the President of the National Association of
Small Trucking Companies (NASTC), in an affidavit attached to the MCRR
Coalition's comments, stated that the fear that the increased bond
amount would be cost prohibitive for small brokers and have an anti-
competitive effect did not materialize.\41\
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\34\ Id. at 5.
\35\ The supply chain is a critical issue that the Department of
Transportation is addressing in response to disruptions caused by
the COVID-19 pandemic.
\36\ See footnote 21 above.
\37\ SBTC Application, at 5.
\38\ Id. at 14. See also May 29, 2020 comments of the Small
Business in Transportation Coalition, at 3.
\39\ Comments of the Motor Carrier Regulatory Reform Coalition,
at 2.
\40\ Id. at 8. JW Surety Bonds also indicates that surety
premiums are consistently low. Comments of JW Surety Bonds, at 1.
\41\ Comments of the Motor Carrier Regulatory Reform Coalition,
Affidavit of David Owen, at 1.
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As noted above, SBTC argues that the factoring industry's direct
payment of motor carriers obviates the need for the ``smallest of
brokers'' to have a broker bond.\42\ SBTC's argument is unsupported by
any evidence, however, and therefore FMCSA has no basis for a finding
that the presence of factors in motor carrier transportation means the
public interest will be served by granting the requested exemption.
SBTC also argues that a 5-year exemption is warranted to give FMCSA
time to implement its ``comprehensive enforcement program'' to enforce
the broker bonding and licensing requirement.\43\ But SBTC's argument
on this point falls short as well. SBTC fails to show how exempting a
large segment of the broker industry from the bond requirement would be
in the public interest merely because some entities are currently not
complying. The core public interest implicated in Congress's imposition
of the $75,000 financial security requirement is that motor carriers
(and shippers) be paid in the event of broker or freight forwarder non-
payment. SBTC's exemption request, if granted, would undermine that
goal.
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\42\ SBTC May 29 comments, at 4.
\43\ SBTC Application, at 4.
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FMCSA therefore does not find that the $75,000 financial
responsibility requirement for brokers/freight forwarders is ``not
necessary to carry out the transportation policy of section 13101.'' 49
U.S.C. 13541(a)(1). Nor does FMCSA find that continued regulation under
section 13906(b) and (c) ``is not needed to protect shippers from the
abuse of market power.'' 49 U.S.C. 13541(a)(2). Finally, granting the
exemption requested by SBTC is not in the public interest. 49 U.S.C.
13541(a)(3). Accordingly, SBTC's request is denied.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-27220 Filed 12-15-21; 8:45 am]
BILLING CODE 4910-EX-P