[Federal Register Volume 85, Number 70 (Friday, April 10, 2020)]
[Notices]
[Pages 20334-20335]
[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<PHONE_NUMBER> 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:<PHONE_NUMBER>; Email<EMAIL_ADDRESS>If
you have questions on viewing or submitting material to the docket,
contact Docket Services, telephone<PHONE_NUMBER>.

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

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