[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Proposed Rules]
[Pages 48779-48787]
[FR Doc No: 2018-21052]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 387

[Docket No. FMCSA-2016-0102]
RIN 2126-AC10

Broker and Freight Forwarder Financial Responsibility

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

ACTION: Advance notice of proposed rulemaking (ANPRM); request for
comments.

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SUMMARY: FMCSA announces that it is initiating rulemaking action
pertaining to the implementation of the Moving Ahead for Progress in
the 21st Century Act (MAP-21). MAP-21 raised the financial security
amount for brokers to $75,000 and, for the first time, established
financial security requirements for freight forwarders. In this ANPRM,
the Agency is considering eight separate areas: Group surety bonds/
trust funds, assets readily available, immediate suspension of broker/
freight forwarder operating authority, surety or trust responsibilities
in cases of broker/freight forwarder financial failure or insolvency,
enforcement authority, entities eligible to provide trust funds for
form BMC-85 trust fund filings, Form BMC-84 and BMC-85 trust fund
revisions, and household goods (HHG). The Agency seeks comments and
data in response to this ANPRM.

DATES: Comments on this document must be received on or before November
26, 2018.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System Docket ID (FMCSA-2016-0102) using any of the
following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
    Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590.
    Hand Delivery or Courier: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., ET, Monday through Friday, except Federal holidays.
    Fax: 1-202-493-2251.
    Confidential Business Information (CBI): Submissions containing CBI
and marked in accordance with 49 CFR 389.9 must be sent to Mr. Brian
Dahlin, Chief, Regulatory Evaluation Division, 1200 New Jersey Avenue
SE, Washington, DC 20590.
    Each submission must include the Agency name and the docket number
for this document. Note that DOT posts all comments received without
change, except those marked in accordance with 49 CFR 389.9, 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, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The online Federal document management system is available 24
hours each day, 365 days each year. If you would like acknowledgment
that the Agency received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments online.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking 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 FDMS), which can be reviewed at
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this ANPRM,
contact Mr. Jeff Secrist, Office of Registration and Safety
Information, at<PHONE_NUMBER>, or by email at [email protected], or
Mr. Kenneth Riddle, Office of Registration and Safety Information, at
(202) 366-9616 or by email at [email protected].
    If you have questions on viewing or submitting material to the
docket, contact Docket Services at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: This advance notice of proposed rulemaking
(ANPRM) is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
II. Legal Basis
III. Background
    A. 2013 Omnibus Final Rule Increased Financial Security Amount
    B. Other Broker and Freight Forwarder Requirements
    C. 2014 Advance Notice of Proposed Rulemaking
    D. 2016 Public Informal Roundtable Discussion
IV. New MAP-21, Sec. 32918, Advance Notice of Proposed Rulemaking
    A. Two Key Issues Stakeholders Want Addressed
    B. Eight Areas Being Considered
    1. Group Surety Bonds/Trust Funds
    2. Assets Readily Available
    3. Immediate Suspension of Operating Authority
    4. Surety or Trust Responsibilities in Cases of Broker/Freight
Forwarder Financial Failure or Insolvency
    5. Enforcement Authority
    6. Eligible BMC-85 Trust Funds
    7. BMC-84 and BMC-85 Form Revisions
    8. Household Goods
V. Rulemaking Analyses
    A. E.O. 12866 Regulatory Planning and Review and DOT Regulatory
Policies and Procedures
    B. E.O. 13771 Reducing Regulation and Controlling Regulatory
Costs
    C. Small Business Regulatory and Enforcement Fairness Act
VI. Comments Sought

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this
document (FMCSA-2016-0102), indicate the specific section of this
document to which each 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 methods. 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 that the Agency can contact you if it has questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and
put the docket number, ``FMCSA-2016-0102'' in the ``Keyword'' box, and
click ``Search''. When the new screen appears, click on the ``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.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act, CBI is
eligible for protection from public disclosure. If you have CBI that is
relevant or responsive to this document, it is important that you
clearly designate the submitted comments as CBI. Accordingly, please
mark each page of your submission as ``confidential'' or ``CBI.''
Submissions designated as CBI and meeting the definition noted above
will not be placed in the public docket of this document. Submissions
containing CBI should be sent to Mr. Brian Dahlin at

the address shown above under the heading ADDRESSES. Any commentary
that FMCSA receives which is not specifically designated as CBI will be
placed in the public docket for this rulemaking.
    FMCSA will consider all comments and materials received during the
comment period.

B. Viewing Comments and Documents

    To view comments, go to http://www.regulations.gov and insert the
docket number, ``FMCSA-2016-0102'' in the ``Keyword'' box and click
``Search''. Next, click the ``Open Docket Folder'' button and choose
the document listed to review. If you do not have access to the
internet, you may view the docket by visiting the Docket Management
Facility in Room W12-140 on the ground floor of the DOT West Building,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.

II. Legal Basis

    In 2012, Congress enacted the Moving Ahead for Progress in the 21st
Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, 822),
specifically, section 32918 which contained requirements for the
financial security of brokers and freight forwarders that amended 49
U.S.C. 13906.

III. Background

A. 2013 Omnibus Final Rule Increased Financial Security Amount

    Section 32918 raised the financial security amount for brokers to
$75,000 and, for the first time, established financial security
requirements for freight forwarders. A ``broker'' is a ``person . . .
that as a principal or agent sells, offers for sale, negotiates for, or
holds itself out by solicitation, advertisement, or otherwise as
selling, providing, or arranging for, transportation by motor carrier
for compensation.'' 49 U.S.C. 13102(2); see also 49 CFR 371.2(a)(FMCSA
regulatory definition of ``Broker''). A ``freight forwarder'' is
defined as ``a person holding itself out to the general public (other
than as a pipeline, rail, motor, or water carrier) to provide
transportation of property for compensation and in the ordinary course
of its business'' (1) performs certain services including assembly,
break-bulk or distribution services, (2) ``assumes responsibility for
the transportation from the place of receipt to the place of
destination'' and (3) ``uses for any part of the transportation a
carrier'' such as a motor carrier. 49 U.S.C. 13102(8); see also 49 CFR
387.401(a)(FMCSA regulatory definition of freight forwarder).
    FMCSA implemented those MAP-21 financial responsibility limit
requirements in a 2013 Omnibus rulemaking, 78 FR 60226 (Oct. 1, 2013),
codified at 49 CFR 387.307(a) (brokers) and 49 CFR 387.403T(c) and
387.405 (freight forwarders). Under the existing regulations, brokers
and freight forwarders must have in effect a surety bond or trust fund
in the amount of $75,000. As a condition to obtain registration,
brokers and freight forwarders must provide evidence of the surety bond
by filing a form BMC-84 or the trust fund by filing a form BMC-85 with
the Agency.

B. Other Broker and Freight Forwarder Requirements

    In addition to increasing and extending the minimum financial
responsibility requirements, MAP-21 also gave FMCSA the authority to
accept a ``group surety bond, trust fund, or other financial security''
as evidence of financial responsibility (49 U.S.C. 13906(b)(1)(B),
(c)(1)(B)). MAP-21 authorized FMCSA to accept trust funds or other
financial security only if they consist of ``assets readily available
to pay claims without resort to personal guarantees or collection of
pledged accounts receivable'' (49 U.S.C. 13906(b)(1)(C), (c)(1)(D)).
The statute also clarified the types of claims that broker and freight
forwarder surety bonds/trust funds are designed to cover (49 U.S.C.
13906(b)(2)(A), (c)(2)(A)).
    Section 32918 of MAP-21 requires the Agency to ``immediately
suspend'' broker/freight forwarder operating authority registration if
the ``available financial security'' of the broker or freight forwarder
falls below $75,000 (49 U.S.C. 13906(b)(5), (c)(6)), and also
established claims payment procedures in the event of broker or freight
forwarder ``financial failure or insolvency'' (49 U.S.C. 13906(b)(6),
(c)(7)). Additionally, MAP-21 gave FMCSA the authority to take direct
enforcement action against surety providers, through court action,
civil penalty proceedings or suspension of providers' ability to make
financial security filings with the Agency (49 U.S.C. 13906(b)(7),
(c)(8)). Finally, section 32918 clarified that the form of broker/
freight forwarder financial responsibility and who provides such
security must be approved by FMCSA (49 U.S.C. 13906(b)(1)(A),
(c)(1)(A)).\1\
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    \1\ Compare current 49 U.S.C. 13906(b)(1)(A) (``The Secretary
may register a person as a broker . . . only if the person files
with the Secretary a surety bond, proof of trust fund . . . in a
form and amount, and from a provider, determined by the Secretary to
be adequate to ensure financial responsibility'') with previous
13906(b) (``The Secretary may register a person as a broker under
section 13904 only if the person files with the Secretary a bond,
insurance policy or other type of security approved by the Secretary
to ensure that the transportation for which a broker arranges is
provided.'').
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C. 2014 Advance Notice of Proposed Rulemaking

    The Agency moved a step further toward implementation of section
32918 in its 2014 Advance Notice of Proposed Rulemaking (2014 ANPRM)
pertaining to Financial Responsibility for Motor Carriers, Freight
Forwarders and Brokers. 79 FR 70839 (Nov. 28, 2014).\2\ Although that
2014 ANPRM focused primarily on motor carrier minimum financial
responsibility limits, the Agency did ask three questions pertaining to
BMC-84/85 filers. Specifically, the Agency sought information
pertaining to BMC-85 providers' posting of claims information on their
websites, the public notification by BMC-85 providers in the event of
broker or freight forwarder financial failure, and the possible need
for the BMC-84/85 forms to be adjusted to provide claims handling
instructions to the surety or trustee. 79 FR at 70843. The Agency
received several comments in response to its request.\3\ After
reviewing all public comments to the ANPRM, FMCSA determined that it
had insufficient data or information to support moving forward with a
rulemaking proposal, and withdrew the 2014 ANPRM on June 5, 2017. See
82 FR 25753.
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    \2\ On May 9, 2014, the Transportation Intermediaries
Association (TIA) filed with FMCSA a ``Petition for Rulemaking:
Requirements for BMC-84 Bond and BMC-85 Trust Providers.'' In its
petition, TIA sought to require that trust fund payments be made
public, sought ``clarification of BMC-85 trust deposits,'' and
sought ``clarification of when a BMC-84 bond or BMC-85 trust may
make payments,'' among other issues. The Agency met with TIA to
discuss its petition in March 2015, and TIA submitted a March 30,
2015, follow-up letter in response to that meeting. FMCSA believes
that the issuance of this ANPRM will allow TIA to raise concerns
related to its Petition for Rulemaking in the course of this
proceeding and accordingly is denying the TIA petition as moot.
    \3\ See Comments of: M. Thomas Ruke, Jr., Docket No. FMCSA-2014-
0211-1668, at 3-4 (Feb. 24, 2015); Avalon Risk Management Insurance
Agency, LLC., Docket No. FMCSA-2014-0211-1675, at 4-9 (Feb. 25,
2015); Roanoke Insurance Group, Inc., Docket No. FMCSA-2014-0211-
1997, at 1-3 (Mar. 2, 2015); Transportation Intermediaries
Association, Docket No. FMCSA-2014-0211-2033, at 5-10 (Mar. 2,
2015); Owner-Operator Independent Drivers Association, Inc. and
OOIDA Risk Retention Group, Inc., Docket No. FMCSA-2014-0211-2148,
at 51-53 (Mar. 3, 2015).
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D. 2016 Public Informal Roundtable Discussion

    On April 27, 2016, the Agency announced that it would host an

informal roundtable discussion pertaining to broker and freight
forwarder financial responsibility, 81 FR 24935 (Apr. 27, 2016). In its
April 27 meeting notice, FMCSA sought comment on denials of claims by
BMC-85 providers, the current and prospective composition of BMC-85
trust fund assets, non-FMCSA regulation of BMC-85 providers, actions
that FMCSA could take to ensure that motor carriers and shippers can
collect on legitimate claims filed with BMC-85 providers, and issues
associated with the financial stability of BMC-85 providers. 81 FR at
24937. The Agency received a total of 29 comments in response to the
roundtable discussion notice.
    On May 20, 2016, the Agency held the full-day informal roundtable
discussion at DOT Headquarters in Washington, DC. Stakeholders from
around the country attended the event, along with members of FMCSA's
Senior Leadership and staff. Public participants included
representatives from the BMC-84 surety bond and BMC-85 trust fund
industries, broker and freight forwarder trade associations, and motor
carrier trade associations. On October 20, 2016, the Agency placed
notes summarizing the public meeting and a list of the meeting
attendees in this docket.\4\
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    \4\ FMCSA-2016-0102-0030 (Oct. 20, 2016).
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IV. New MAP-21, Sec. 32918, Advance Notice of Proposed Rulemaking

    After careful consideration of the public comments the Agency
received in response to the 2014 ANPRM and the April 27, 2016 notice,
TIA's 2014 Petition for Rulemaking, and the May 20 Roundtable itself,
FMCSA has decided to initiate a second rulemaking pertaining to MAP-21
section 32918.\5\ Accordingly, the Agency is issuing this ANPRM to
signal its preliminary intentions in connection with such a rulemaking
and to seek additional data or information to support moving forward
with a rulemaking proposal. As noted above, this ANPRM will render moot
TIA's May 9, 2014 Petition for Rulemaking.
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    \5\ This initiative will not pertain to increasing motor carrier
minimum financial responsibility limits pursuant to 49 U.S.C. 31138-
31139.
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A. Two Key Issues Stakeholders Want Addressed

    Discussions at the May 20, 2016, informal roundtable revealed that
stakeholders are focused on two key issues pertaining to broker/freight
forwarder financial responsibility. First, there was widespread
agreement among participants that a significant cause of non-payment of
motor carriers by brokers or freight forwarders \6\ is the ability of
brokers and freight forwarders to continue to operate for 30 days after
the surety or trust fund provider notifies FMCSA that it is cancelling
the broker's or freight forwarder's financial responsibility. FMCSA
does not revoke the broker or freight forwarder's operating authority
registration pursuant to 49 U.S.C. 13905(e) until that 30-day period
has lapsed. In contrast, the MAP-21 provisions pertaining to immediate
suspension of broker or freight forwarder operating authority when the
``available financial security'' falls below $75,000 (49 U.S.C.
13906(b)(5), (c)(6)), appear to be designed to address this lag between
surety/trust fund notice of cancellation and removal of the broker/
freight forwarders' ability to operate lawfully. The Agency is
therefore considering adopting a rule to suspend immediately any
broker's/freight forwarder's operating authority when there is an
actual drawdown on the bond/trust fund below the $75,000 minimum
requirement or when the broker/freight forwarder does not respond after
the surety/trust fund provider provides notice of a valid claim.
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    \6\ The stakeholders indicated that few freight forwarders still
operate in the industry and that the primary issues being addressed
pertain to brokers, not freight forwarders. FMCSA records indicate
there were 1,499 active freight forwarders as of August 2017.
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    Second, at the roundtable discussion, certain stakeholders made it
clear to the Agency that there is concern about the financial
wherewithal of BMC-85 trust providers, and the sufficiency of the
assets within those funds to pay legitimate claims by motor carriers or
shippers. On the other hand, representatives of the BMC-85 trust fund
provider community, both at the roundtable discussion and in comments
filed after the meeting,\7\ asserted that, with one limited
exception,\8\ no evidence has been produced showing that BMC-85
providers have failed to pay legitimate claims made on their trusts.
While FMCSA acknowledges the BMC-85 providers' position, the Agency
must implement the express will of Congress as reflected in the
requirement at 49 U.S.C. 13906(b)(1)(C), (c)(1)(D) that trust funds
consist of ``assets readily available to pay claims without resort to
personal guarantees or collection of pledged accounts receivable.''
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    \7\ See Comments of: John B. Gilding, Docket No. FMCSA-2016-
0102-0021, at 1 (May 31, 2016); Transport Financial Services, LLC,
Docket No. FMCSA-2016-0102-0027, at 2-3 (June 20, 2016); Liberty
National Financial Corp., Docket No. FMCSA-2016-0102-0029, at 1
(June 28, 2016).
    \8\ According to certain stakeholders, Oasis Capital, Inc.
(Oasis), a BMC-85 trust fund provider, failed to pay claims due to
criminal activity. FMCSA revoked Oasis's authorization to file BMC-
85 trust funds on behalf of brokers in 2010, and the Agency required
those brokers utilizing Oasis BMC-85s as evidence of financial
responsibility to file new BMC-84s or BMC-85s or face loss of their
operating authority. Bonnie Warren, Oasis's president, ultimately
pled guilty to wire fraud in connection with Oasis's conduct, and
the court imposed a sentence that included home confinement and
other sanctions. https://www.oig.dot.gov/library-item/32968.
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    While the Agency always welcomes input on its implementation of
statutory mandates, as evidenced by the frank, open, and robust
discussions at the May 20, 2016 roundtable, FMCSA's primary mission
remains the promotion of motor carrier safety. 49 U.S.C. 113(b).
Accordingly, in its implementation of section 32918, FMCSA must avoid
unnecessary diversion of scarce resources away from critical safety
functions. FMCSA's discussion of approaches in today's ANPRM reflects
that statutory and operational reality, and the Agency requests that
stakeholders consider such constraints in whatever comments they
provide in response to this document.

B. Eight Areas Being Considered

    After careful consideration, the Agency has decided to focus on
eight core areas in this ANPRM: (1) Group surety bonds/trust funds, (2)
assets readily available, (3) immediate suspension of broker/freight
forwarder operating authority, (4) surety or trust responsibilities in
cases of broker/freight forwarder financial failure or insolvency, (5)
enforcement authority, (6) entities eligible to provide trust funds for
BMC-85 filings, (7) BMC-84 and BMC-85 revisions and (8) HHG.\9\ The
following discussion addresses each of these in turn.
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    \9\ While HHG broker/freight forwarder financial responsibility
falls within the scope of MAP-21 Section 32918's new broker/freight
forwarder financial security requirements, the Agency has previously
recognized that HHG broker financial security as distinct from other
property broker financial security. See Brokers of Household Goods
Transportation by Motor Vehicle, 75 FR 72987 (Nov. 29, 2010), in
which the Agency increased the broker bond/trust fund amount for HHG
brokers only, from $10,000 to $25,000. Accordingly, in this ANPRM
regarding broker/freight forwarder financial responsibility, the
Agency announces it is considering changes specific to HHG broker/
freight forwarder financial responsibility and seeks related
specific information.
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1. Group Surety Bonds/Trust Funds
    MAP-21 section 32918 authorizes, but does not require, the Agency
to accept group surety bonds or trust funds on behalf of brokers or
freight forwarders to meet their financial responsibility requirements.
49 U.S.C. 13906(b)(1)(B) and 13906(c)(1)(B). In Registration and
Financial Security

Requirements for Brokers of Property and Freight Forwarders, 78 FR
54720 (Sep. 5, 2013), the Agency stated that it would not be accepting
group instruments at that time. 78 FR at 54721. The Agency indicated it
would re-examine the issue, however.
    While the term ``group surety bond'' does not appear to be commonly
used, the Agency has identified and examined a group surety bond
provision within the Federal Maritime Commission (FMC) regulations. 46
CFR 515.21. FMC regulates Ocean Transportation Intermediaries (OTIs),
consisting of Non-Vessel Operating Common Carriers (NVOCCs) (similar to
FMCSA-regulated freight forwarders), and freight forwarders (similar to
FMCSA-regulated brokers). These OTIs are required to submit evidence of
financial responsibility to FMC and can submit group surety bonds as
evidence of such financial responsibility. In a group surety bond
arrangement, OTI members pay a fee to belong to a group, which then
provides the required surety bond for each member. FMC's group surety
bond provision allows the group to establish financial responsibility
in the amount required for each individual member or $3,000,000 in
aggregate, whichever is less.
    FMCSA is concerned that monitoring whether group instruments comply
with MAP-21 will impose a significant administrative burden on the
Agency, potentially to the detriment of safety oversight, without
providing a commensurate benefit for motor carriers and shippers, the
intended beneficiaries of the surety bonds and trust funds. The benefit
to these beneficiaries from group instruments likely would be
unchanged, as the same total level of financial protection would still
be required.
    Further, because FMCSA requires that a trust fund or surety bond
cover each broker or freight forwarder for $75,000, the FMC surety bond
requirement, with its $3 million cap, does not provide an adequate
model for the Agency to ensure levels of financial security as
contemplated by the statute. In addition, the Agency has been unable to
locate any definition for group trust funds. Therefore, with no
adequate model for group surety bonds or trusts funds, the Agency is
not currently inclined to accept group sureties or trust funds. Before
the Agency considers the matter of group surety or trust arrangements
further for purposes of developing a notice of proposed rulemaking
(NPRM) in this docket, we specifically seek comment on the definition
of ``group surety bond'' or ``group trust fund'' and how the Agency
could administer such a group surety or trust option given its limited
resources.
2. Assets Readily Available
    As noted above, Congress issued a clear mandate in MAP-21 that
broker/freight forwarder trust funds must consist of ``assets readily
available to pay claims without resort to personal guarantees or
collection of pledged accounts receivable.'' 49 U.S.C. 13906(b)(1)(C),
(c)(1)(D). The Agency is committed to adopting a definition of ``assets
readily available'' that implements the will of Congress and is
reasonable for the Agency to administer given its resource constraints.
    Stakeholders provided numerous comments on the definition of
``assets readily available'' at the roundtable discussion and in
associated written comments. Avalon Risk Management Insurance Agency
LLC (Avalon), an underwriter of BMC-84 bonds, suggested in its pre-
roundtable comments that cash or certain irrevocable letters of credit
issued by Federal Deposit Insurance Corporation (FDIC)-insured banks
would satisfy the standard.\10\ The Surety & Fidelity Association of
America (SFAA), also in pre-roundtable comments, looked to other
federal law or regulation for a standard.\11\ In particular, SFAA cited
Federal Acquisition Regulation (FAR) 28.204, which, according to SFAA,
requires that financial security be provided in the form of United
States government bonds or notes, a certified or cashier's check, an
irrevocable letter of credit, or other options that are easily
convertible into cash. SFAA's post-roundtable comment also recommended
that $75,000 of broker assets need to be in trust funds.\12\ In post-
roundtable comments, JW Surety Bonds, a company that issues BMC-84
surety bonds, argued for full funding of the trust with non-volatile
liquid assets, including cash or an irrevocable letter of credit from
an FDIC-insured bank.\13\
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    \10\ See Comments of Avalon Risk Management Insurance Agency
LLC, Docket No. FMCSA-2016-0102-0014, at 3-4 (May 18, 2016).
    \11\ See Comments of The Surety & Fidelity Association of
America, Docket No. FMCSA-2016-0102-0011, at 2 (May 9, 2016).
    \12\ See Comments of The Surety & Fidelity Association of
America, Docket No. FMCSA-2016-0102-0022, at 2-3 (June 7, 2016).
    \13\ See Comments of JW Surety Bonds, Docket No. FMCSA-2016-
0102-0023, at 5, 8 (June 10, 2016).
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    While FMCSA has heard from multiple representatives of the BMC-84
industry on an appropriate definition of ``assets readily available,''
it has heard little from the BMC-85 industry. We received only one
comment, from the Chief Executive Officer of Pacific Financial
Association, Inc. (Pacific Financial), the largest filer of BMC-85s
with FMCSA. At the roundtable, Pacific Financial indicated that
Congress clearly did not limit the term to cash only. It also suggested
that if a trust purchased a bond to cover a $75,000 guarantee, such an
arrangement could be sufficient.\14\ Pacific Financial also filed
supplemental materials and pointed to their own ``internal letter of
credit'' as a viable alternative.
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    \14\ See Broker and Freight Forwarder Financial Responsibility
Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 6
(Oct. 20, 2016).
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    After a careful analysis and with specific regard for Pacific
Financial's comments, the Agency is currently considering proposing a
definition of ``assets readily available'' to include cash or FMCSA-
approved letters of credit.\15\ FMCSA is considering accepting letters
of credit from FDIC-approved banks, but is also open to other options.
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    \15\ Before MAP-21, the Agency signaled its view that broker
trust funds must consist of cash. In describing a delayed effective
date for the increase of the surety bond/trust fund requirement from
$10,000 to $25,000 for HHG brokers in its 2010 HHG broker
rulemaking, the Agency stated ``for those household goods brokers
using trust fund agreements, this should give sufficient time for
these entities to raise the additional $15,000 of capital to place
in escrow with their trust fund managers.'' Brokers of Household
Goods Transportation by Motor Vehicle. 75 FR 72987, 72992 (Nov. 29,
2010).
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    The Agency solicits suggestions from the BMC-85 industry and others
about how the Agency could accept letters of credit and other
instruments that could meet the ``assets readily available'' standard
without requiring significant oversight or evaluation that would divert
scarce safety resources. The Agency also specifically seeks comment
from the surety bond industry on that industry's capacity to meet the
increased market demand if FMCSA were to adopt a cash-only standard for
BMC-85 trust funds, which could potentially drive a significant segment
of the broker/forwarder industry into surety bond coverage.
Additionally, FMCSA seeks comment from the surety bond industry on the
cost to brokers and freight forwarders of BMC-84 surety bonds.
3. Immediate Suspension of Operating Authority
    MAP-21 section 32918 provides that ``[FMCSA] shall immediately
suspend the registration of a broker . . . if the available financial
security of that person falls below [$75,000].'' 49 U.S.C. 13906(b)(5);
see also 49 U.S.C. 13906(c)(6) (substantively identical language for
freight forwarders). Accordingly, to effectively implement

these provisions, FMCSA first needs to determine when the ``available
financial security'' of a broker/freight forwarder is below $75,000. At
the roundtable discussion, the Owner-Operator Independent Drivers
Association (OOIDA) indicated that as soon as a surety provides notice
to a broker in connection with a claim and the broker does not respond
to the notice, the broker's operating authority registration should be
suspended.\16\ According to the Roanoke Insurance Group (Roanoke), a
series of claims should trigger quicker suspension of the broker's
operating authority.\17\ Roanoke also indicated that quicker suspension
should occur where the broker does not respond to communications about
the claim.\18\ In post-meeting comments, Liberty National Financial
Corporation said a broker's failure to respond to a surety contact
about a claim in 24 hours would be a reasonable trigger for suspension
of the broker's authority.\19\
---------------------------------------------------------------------------

    \16\ See Broker and Freight Forwarder Financial Responsibility
Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 2
(Oct. 20, 2016).
    \17\ Id. at 7.
    \18\ Id.
    \19\ See Comments of Liberty National Financial Corp., Docket
No. FMCSA-2016-0102-0029, at 2 (June 28, 2016).
---------------------------------------------------------------------------

    The Agency is considering an approach where it would ``immediately
suspend'' the authority of a broker or freight forwarder in one of two
situations. First, it would suspend when it receives notice from the
surety or trust fund provider that a drawdown/payout on the bond/trust
has occurred, such that the available financial security is less than
$75,000. The second situation would be where: (1) A surety/trust fund
provider gives reasonable notice of a claim to the broker/freight
forwarder, (2) the broker/freight forwarder does not respond, and (3)
the surety/trust fund provider determines that the claim is valid and
provides notice of these events to FMCSA. In this situation there often
may be reason to conclude that, had the unpaid claim actually been
paid, the remaining available financial security would have fallen
below $75,000. FMCSA seeks comment on the appropriate cushion time for
brokers or freight forwarders to respond to claims made to the
guarantors, valid or otherwise. Such a grace period would seem to give
firms adequate time to adjudicate claims and settlements internally, as
well as price in the costs associated with any claims relating to
contract noncompliance.
    Suspending broker/freight forwarder operating authority whenever a
claim is filed against a broker/freight forwarder or its bond/trust
would raise due process concerns, as the Agency would be prohibiting
the broker/freight forwarder from lawfully operating, without affording
the company a chance to respond. In continuing to develop information
to inform an NPRM, the Agency will consider how it can ``immediately
suspend'' broker/freight forwarder operating authority registration in
a manner that is consistent with constitutional due process
requirements, e.g., by providing an appropriate opportunity for post-
deprivation review. FMCSA specifically invites comments responsive to
this issue, including documented incidence of actual nonpayment that
occurred after problem brokers or freight forwarder were not
``immediately'' suspended.
4. Surety or Trust Responsibilities in Cases of Broker/Freight
Forwarder Financial Failure or Insolvency
    Section 32918 requires sureties or trust fund providers to commence
action to cancel broker or freight forwarder surety bonds or trust
funds in the event of broker/freight forwarder ``financial failure'' or
``insolvency.'' 49 U.S.C. 13906(b)(6), (c)(7). Accordingly, to
effectively implement this provision, the Agency needs to determine
what ``financial failure'' or ``insolvency'' means. FMCSA has received
public comments on these terms.
    In response to the 2014 financial responsibility ANPRM, Avalon
indicated ``financial failure or insolvency'' should mean more than
just ``bankruptcy or a total disappearance of the principal, but also
include a clear pattern of unresolved claims in a sufficient volume to
constitute a constructive financial failure.'' \20\ Avalon reiterated
those statements in its pre-roundtable discussion comments and added
that ``security providers should be allowed to respond in cases where
there are three or more claims aggregating in excess of $25,000 which
have remained unresolved for at least 30 days.'' \21\ SFAA, in its
post-roundtable discussion letter, says a definition similar to
Avalon's position is inadequate, as claims may not need to be paid.\22\
At the May 20, 2016, roundtable discussion, TIA said perhaps three or
more claims aggregating to a certain amount could constitute a
financial failure of the broker.\23\ The claims would have to remain
unresolved for a certain amount of days. Avalon stated at the
roundtable that financial failure could be established if ``X'' number
of claims accrue in ``Y'' number of days.\24\
---------------------------------------------------------------------------

    \20\ Comments of Avalon Risk Management Insurance Agency LLC,
Docket No. FMCSA-2014-0211-1675, at 8-9 (Feb. 25, 2015).
    \21\ Comments of Avalon Risk Management Insurance Agency LLC,
Docket No. FMCSA-2016-0102-0014, at 6-7 (May 18, 2016).
    \22\ See Comments of The Surety & Fidelity Association of
America, Docket No. FMCSA-2016-0102-0022, at 4 (June 7, 2016).
    \23\ See Broker and Freight Forwarder Financial Responsibility
Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 4
(Oct. 20, 2016).
    \24\ Id. at 7.
---------------------------------------------------------------------------

    The Agency is considering a definition of ``financial failure'' or
``insolvency'' that would apply at a pre-bankruptcy stage. In this
regard, a Bankruptcy Court case in the District of Delaware found that
49 U.S.C. 13906(b)(6) did not apply to a broker's bond in a bankruptcy
case.\25\ Consistent with this view, ``financial failure or
insolvency'' under MAP-21 section 32918 would be established where the
broker or freight forwarder has claims against its bond/trust, is not
responding to notifications from the trust or surety provider within 14
days, and is not in bankruptcy proceedings. FMCSA has suggested these
criteria for ``financial failure or insolvency'' as commenters have
suggested that unresolved claims are consistent with a broker's
``financial failure or insolvency.'' Moreover, through interaction with
stakeholders, FMCSA has learned that a broker's failure to respond to
notices about claims from a surety or trust often indicates that the
broker is out of business. At the same time, giving a broker or freight
forwarder 14 days to respond to the surety or trust fund provider
before a determination of ``financial failure'' is made would give the
broker or freight forwarder an opportunity to respond if their
nonresponse was based on a lack of communication or other short term
issue, as opposed to a financial failure. In suggesting a definition of
``financial failure or insolvency'' that applies outside of bankruptcy,
FMCSA is also adopting the holding from the referenced AWI Delaware
case. Moreover, given that Section 13906(b)(6) and (c)(7)'s ``financial
failure or insolvency'' provisions require action by the surety or
trust fund provider against the broker or freight forwarder's surety
bond or trust fund, applying these provisions in bankruptcy could run
afoul of the automatic stay provisions of bankruptcy law.
---------------------------------------------------------------------------

    \25\ AWI Delaware, Inc., et al., Case No. 14-12092 (KJC) (Bankr.
D. Del. Nov. 25, 2014).
---------------------------------------------------------------------------

    Additionally, section 32918 requires that in the event of
``financial failure'' or ``insolvency,'' surety providers must
``publicly advertise'' for claims for 60

days beginning on the date FMCSA publishes the surety's notice to
cancel the surety bond/trust. 49 U.S.C. 13906(b)(6)(B), (c)(7)(B). The
Agency is considering a definition of ``publicly advertise'' that could
be satisfied through FMCSA's posting of the cancellation notice on its
website. The Agency is investigating whether it can flag such
``financial failure'' cancellations with a special code, so that
potential claimants reviewing a broker or freight forwarder's records
on the FMCSA website will know that a 60-day period to make a claim has
begun to run. The Agency seeks comments on how ``financial failure or
insolvency'' and ``publicly advertise'' should be defined.
5. Enforcement Authority
    Under 49 U.S.C. 13906(b)(7), (c)(8), FMCSA has been granted
expanded enforcement authority over surety providers. FMCSA has new
civil penalty authority to suspend non-compliant surety providers from
providing broker or freight forwarder financial responsibility for
three years, and further authority to sue non-compliant surety
providers in Federal court. FMCSA anticipates that it will revise its
regulations to incorporate these new civil penalty provisions. It also
intends to modify 49 CFR 387.317 (brokers) and 387.415 (freight
forwarders) to incorporate the new surety suspension authority. The
Agency expects to establish a procedure for such suspensions where it
will issue an order to show cause against a non-compliant surety
provider, weigh evidence submitted by the provider, and make a final
decision. The Agency seeks input on the development of these surety
suspension procedures.
6. Eligible BMC-85 Trust Funds
    FMCSA has broad authority under MAP-21 to determine who is eligible
to provide trust fund services on behalf of brokers or freight
forwarders. Under 49 U.S.C. 13906(b)(1)(A), a broker must file a surety
bond or trust fund from a provider ``determined by the Secretary to be
adequate to ensure financial responsibility.'' See also 49 U.S.C.
13906(c)(1)(A) for freight forwarders. Under current regulations at 49
CFR 387.307, a ``financial institution'' may file trust funds. In
addition to other types of entities, ``loan or finance'' companies are
considered financial institutions pursuant to 49 CFR 387.307(c)(7).
    Commenters have addressed the suitability of the ``loan or
finance'' company category of ``financial institution.'' Avalon, in
pre-roundtable discussion comments, indicated ``loan and finance''
companies are ``far less regulated if at all.'' \26\ It also indicated
that ``FMCSA's refusal to deal with the regulatory gaps is an
abrogation of its responsibility to state regulators who do nothing and
don't care.'' \27\ Avalon proposed deleting the ``loan or finance
company'' and the ``person subject to supervision by any State or
Federal bank supervisory authority'' categories from the regulation.
(49 CFR 387.307(c)(7) and (8)). Avalon asserted that ``these entities
are not sufficiently regulated by the states to safeguard the public
interest and the FMCSA has neither the staff nor the inclination to
regulate them.'' \28\ JW Surety, in pre-roundtable discussion comments,
stated that BMC-85 providers are ``operating unregulated by any
government agency.'' \29\ In post-roundtable comments, it agreed with
Avalon that Sec.  387.307(c)(7) and (8) should be eliminated.\30\ SFAA,
in its post-roundtable comments, indicated that FMCSA could require
that BMC-85 providers be licensed as trust companies by a State
regulator.\31\ JW Surety, in post-meeting comments, argued that BMC-85
providers should be licensed trust companies or FDIC-insured banks.\32\
---------------------------------------------------------------------------

    \26\ Comments of Avalon Risk Management Insurance Agency LLC,
Docket No. FMCSA-2016-0102-0014, at 4 (May 18, 2016).
    \27\ Id. at 13.
    \28\ Id.
    \29\ Comments of JW Surety Bonds, Docket No. FMCSA-2016-0102-
0017, at 1 (May 19, 2016).
    \30\ See Comments of JW Surety Bonds, Docket No. FMCSA-2016-
0102-0025, at 9 (June 10, 2016).
    \31\ See Comments of The Surety & Fidelity Association of
America, Docket No. FMCSA-2016-0102-0022, at 2 (June 7, 2016).
    \32\ See Comments of JW Surety Bonds, Docket No. FMCSA-2016-
0102-0025, at 5 (June 10, 2016).
---------------------------------------------------------------------------

    FMCSA is considering amending the definition of ``loan or finance
company'' to ensure that BMC-85 providers' ability to pay claims out of
trust funds is adequately monitored. FMCSA is considering defining
``loan or finance company'' to include only companies regulated by
entities that require certain minimum solvency standards. FMCSA intends
to reach out to appropriate State regulators and professional
associations as part of the rule development process.
    Given the Agency's primary safety focus, and consistent with its
motor carrier financial responsibility regulations at 49 CFR 387.315,
FMCSA must rely on other agencies to be the primary regulators of those
who file financial responsibility instruments with FMCSA. In the case
of BMC-84 surety providers, State insurance regulators and the United
States Department of Treasury provide such regulatory oversight. The
Agency is concerned, however, that 49 CFR 387.307(c)(7) currently
allows entities that are not adequately regulated to administer trust
funds. For example, the California Department of Business Oversight,
which regulates several BMC-85 providers, provides a California Finance
Lender license for a person engaged in the business of making consumer
or commercial loans. Similarly, the Florida Office of Financial
Regulation, which regulates a large BMC-85 provider, provides a
Consumer Finance Company license for entities that solicit, make, and
collect small loans. BMC-85 providers serve as trustees, not lenders.
Accordingly, being regulated as a lender may not provide sufficient
oversight for BMC-85 providers.
    Moreover, given that BMC-85 providers administer trusts on behalf
of brokers or freight forwarders, the Agency is considering whether to
require BMC-85 providers to be licensed as trust providers. We
expressly invite comments in that regard to inform an NPRM.
7. BMC-84 and BMC-85 Form Revisions
    Surety bond providers file BMC-84 surety bonds with FMCSA as
evidence of financial responsibility on behalf of brokers and freight
forwarders. Trust fund providers similarly file BMC-85 trust funds with
FMCSA. The Agency anticipates the need for revisions to the BMC-84 and
BMC-85 forms if rulemaking is proposed. FMCSA invites comments to
identify recommended changes to the forms. Changes to the BMC-84/85
will be proposed in any NPRM and, as measures effecting an Agency
information collection, will be approved through the Office of
Management and Budget in accordance with the Paperwork Reduction Act.
8. Household Goods
    As part of its mission, FMCSA has jurisdiction over the
transportation of household goods (HHG) and the arranging of HHG
transportation.\33\ HHG transportation is significantly different than
general property transportation. This is reflected in FMCSA
regulations, such as 49 CFR part 375 (Transportation of Household Goods
in Interstate Commerce; Consumer Protection Regulations) and 49 CFR
part 371 subpart B (Special Rules for Household Goods Brokers), which
treat HHG transportation differently than other

types of property transportation. Given those differences, FMCSA seeks
information on whether HHG brokers and freight forwarders should be
regulated differently than general property brokers and freight
forwarders in a rulemaking on broker/freight forwarder financial
responsibility. FMCSA notes that we have received complaints about HHG
brokers,\34\ and we solicit comments to help determine whether there is
a unique market structure that might suggest need for additional fraud
protections.
---------------------------------------------------------------------------

    \33\ 49 U.S.C. 13501. HHG is a kind of property and is defined
at 49 U.S.C. 13102(10). FMCSA has jurisdiction over HHG freight
forwarder operations pursuant to 49 U.S.C. 13531.
    \34\ Through its National Consumer Complaint Database (NCCDB),
in Fiscal Year 2017, the Agency received 626 valid HHG complaints
regarding HHG broker activity, primarily ``low ball'' estimates,
where the broker estimates an artificially low price that the
delivering carrier does not honor.
---------------------------------------------------------------------------

    FMCSA is also seeking information on the payment flows among HHG
shippers, brokers and motor carriers. The Agency is aware of
arrangements where HHG shippers pay HHG brokers a deposit and then pay
the remainder of the transportation charges directly to the HHG motor
carrier. Under these arrangements, the Agency believes no monies pass
directly between the broker and motor carrier. FMCSA seeks information
on the prevailing payment models in the HHG broker industry in this
ANPRM.

V. Rulemaking Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures

    Under E.O. 12866, ``Regulatory Planning and Review'' (issued
September 30, 1993, published October 4 at 58 FR 51735), as
supplemented by E.O. 13563 and DOT policies and procedures, if a
regulatory action is determined to be ``significant,'' it is subject to
Office of Management and Budget (OMB) review. E.O. 12866 defines
``significant regulatory action'' as one likely to result in a rule
that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities.
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency.
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof.
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
    The Department has determined this ANPRM is a ``significant
regulatory action'' under E.O. 12866, and significant under DOT
regulatory policies and procedures due to significant public interest
in the legal and policy issues addressed. Therefore, this document has
been reviewed by OMB.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    E.O. 13771 (82 FR 9339, February 3, 2017), Reducing Regulation and
Controlling Regulatory Costs, requires that for ``every one new [E.O.
13771 regulatory action] issued, at least two prior regulations be
identified for elimination, and that the cost of planned regulations be
prudently managed and controlled through a budgeting process.''
Implementation guidance for E.O. 13771 issued by the Office of
Management and Budget (OMB) (Memorandum M-17-21, April 5, 2017) defines
two different types of E.O. 13771 actions: An E.O. 13771 deregulatory
action, and an E.O. 13771 regulatory action.
    An E.O. 13771 deregulatory action is defined as ``an action that
has been finalized and has total costs less than zero.''
    An E.O. 13771 regulatory action is defined as:
    (i) A significant action as defined in Section 3(f) of E.O. 12866
that has been finalized, and that imposes total costs greater than
zero; or
    (ii) a significant guidance document (e.g., significant
interpretive guidance) reviewed by OIRA under the procedures of E.O.
12866 that has been finalized and that imposes total costs greater than
zero.
    The Agency action, in this case a rulemaking, must meet both the
significance and the total cost criteria to be considered an E.O. 13771
regulatory action. As the Department has determined this ANPRM is a
``significant regulatory action'' under E.O. 12866, and significant
under DOT regulatory policies and procedures due to significant public
interest in the legal and policy issues addressed, it meets the
significance criterion for being an E.O. 13771 regulatory action;
however, the requirements of E.O. 13771 do not apply to pre-notice of
proposed rulemakings such as ANPRMs.
    FMCSA specifically seeks comment on how the Agency should analyze
various aspects of a possible NPRM in this proceeding and how the
Agency could limit possible burdens on entities.

C. Small Business Regulatory and Enforcement Fairness Act

    FMCSA has not yet determined whether an Initial Regulatory
Flexibility Analysis (IRFA) will be required for any of the eight
enumerated alternatives listed above. However, if an IRFA is required,
FMCSA is considering holding one or more Small Business Regulatory
Panels. If you are a small business who would like to be included in
such a panel, please submit a comment indicating as such. The Agency
also seeks comment on the small business impacts of the Agency's
suggested courses of action in this ANPRM.

VI. Comments Sought

    The Agency specifically seeks comments and data from the public in
response to this ANPRM. We request that commenters address their
comments specifically to the enumerated list of issues below, and that
commenters number their comments to correspond to each issue. FMCSA
anticipates some of the information and data sought may include CBI,
and these comments should be filed in accordance with the requirements
of 49 CFR 389.9 Treatment of confidential business information and the
instructions above under the subheading Confidential Business
Information under the headings ADDRESSES and Public Participation and
Request for Comments.
    1. FMCSA specifically seeks comment on the definition of ``group
surety bond'' or ``group trust fund'' and how the Agency could
administer such a group surety or trust option given its limited
resources.
    2. The Agency solicits suggestions from the trust fund industry and
others about instruments the Agency could accept that would meet the
``assets readily available'' standard without requiring significant
FMCSA oversight or evaluation that would divert scarce safety oversight
resources.
    3. The Agency specifically seeks comment from the surety bond
industry on that industry's capacity to meet the increased market
demand if FMCSA were to adopt a cash-only standard for BMC-85 trust
funds, which could potentially drive a significant segment of the
broker/forwarder industry into surety bond coverage.
    4. FMCSA seeks comment and data from the surety bond industry on
the cost to brokers and freight forwarders of BMC-84 surety bonds.
    5. The Agency will consider how it could ``immediately suspend''
broker/freight forwarder operating authority registration in a manner
that is

consistent with constitutional due process requirements, e.g., by
providing an appropriate opportunity for post-deprivation review. FMCSA
invites comments responsive to this issue, including documented
incidence of actual nonpayment that occurred after problem brokers or
freight forwarder were not ``immediately'' suspended.
    6. FMCSA seeks comment on the appropriate cushion time for brokers
or freight forwarders to respond to claims made to the guarantors,
valid or otherwise. Such a grace period would seem to give firms
adequate time to adjudicate claims and settlements internally, as well
as price in the costs associated with any claims relating to contract
noncompliance.
    7. The Agency seeks comments on the how ``financial failure or
insolvency'' and ``publicly advertise'' should be defined under MAP-21
Section 32918.
    8. The Agency seeks input on the development of surety suspension
procedures authorized pursuant to 49 U.S.C. 13906(b)(7) and (c)(8).
    9. The Agency requests comments regarding whether FMCSA should
require BMC-85 trust fund providers to be licensed as trust providers
and how 49 CFR 387.307(c)(7) (loan or finance company) could be amended
to ensure that adequate monitoring of BMC-85 providers' ability to pay
claims is taking place.
    10. The Agency anticipates the need for revisions to the BMC-84 and
BMC-85 forms if rulemaking is proposed. FMCSA requests comments to
identify suggested changes to the forms.
    11. FMCSA seeks information on whether HHG brokers and freight
forwarders should be regulated differently than general property
brokers and freight forwarders in a rulemaking on broker/freight
forwarder financial responsibility.
    12. FMCSA solicits comments to help determine whether there is a
unique market structure in the HHG broker market that might suggest the
need for additional fraud protections for shippers utilizing HHG
brokers.
    13. FMCSA seeks information on the prevailing payment models and
payment flows among HHG shippers, motor carriers and brokers.
    14. While noting the MAP-21 requirements, FMCSA is seeking comment
on whether the market is capable of addressing these issues. For
example, if a broker/freight forwarder has a history of noncompliance
with contracts, would surety/trust firms be less likely to back them or
charge a higher premium/trust management fee? Is there a market failure
that is preventing these transactions from taking place efficiently?
    15. FMCSA specifically seeks comment on how the Agency should
analyze various requirements for a possible NPRM to meet the
requirements of E.O. 12866 and 13771, and how the Agency could limit
possible burdens on regulated entities.
    16. FMCSA requests comments on any other aspects of implementing
section 32918 that may be necessary and how these areas could be
implemented in a way that would not divert scarce safety oversight
resources.
    17. FMCSA requests comment on the small business impacts of its
suggested courses of action in this ANPRM.

    Issued under the authority of delegation in 49 CFR 1.87:
September 21, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-21052 Filed 9-26-18; 8:45 am]
 BILLING CODE 4910-EX-P


[Federal Register Volume 85, Number 39 (Thursday, February 27, 2020)]
[Notices]
[Pages 11377-11378]
[FR Doc No: 2020-03899]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2020-0002; Internal Agency Docket No. FEMA-B-2012]

Proposed Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Comments are requested on proposed flood hazard
determinations, which may include additions or modifications of any
Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area
(SFHA) boundary or zone designation, or regulatory floodway on the
Flood Insurance Rate Maps (FIRMs), and where applicable, in the
supporting Flood Insurance Study (FIS) reports for the communities
listed in the table below. The purpose of this notice is to seek
general information and comment regarding the preliminary FIRM, and
where applicable, the FIS report that the Federal Emergency Management
Agency (FEMA) has provided to the affected communities. The FIRM and
FIS report are the basis of the floodplain management measures that the
community is required either to adopt or to show evidence of having in
effect in order to qualify or remain qualified for participation in the
National Flood Insurance Program (NFIP). In addition, the FIRM and FIS
report, once effective, will be used by insurance agents and others to
calculate appropriate flood insurance premium rates for new buildings
and the contents of those buildings.

DATES: Comments are to be submitted on or before May 27, 2020.

ADDRESSES: The Preliminary FIRM, and where applicable, the FIS report
for each community are available for inspection at both the online
location https://www.fema.gov/preliminaryfloodhazarddata and the
respective Community Map Repository address listed in the tables below.
Additionally, the current effective FIRM and FIS report for each
community are accessible online through the FEMA Map Service Center at
https://msc.fema.gov for comparison.
    You may submit comments, identified by Docket No. FEMA-B-2012, to
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance
and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC
20472,<PHONE_NUMBER>, or (email<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Rick Sacbibit, Chief, Engineering
Services Branch, Federal Insurance and Mitigation Administration, FEMA,
400 C Street SW, Washington, DC 20472,<PHONE_NUMBER>, or (email)
<EMAIL_ADDRESS>or visit the FEMA Map Information
eXchange (FMIX) online at https://www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: FEMA proposes to make flood hazard
determinations for each community listed below, in accordance with
section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C.
4104, and 44 CFR 67.4(a).
    These proposed flood hazard determinations, together with the
floodplain management criteria required by 44 CFR 60.3, are the minimum
that are required. They should not be construed to mean that the
community must change any existing ordinances that are more stringent
in their floodplain management requirements. The community may at any
time enact stricter requirements of its own or pursuant to policies
established by other Federal, State, or regional entities. These flood
hazard determinations are used to meet the floodplain management
requirements of the NFIP and are used to calculate the appropriate
flood insurance premium rates for new buildings built after the FIRM
and FIS report become effective.
    The communities affected by the flood hazard determinations are
provided in the tables below. Any request for reconsideration of the
revised flood hazard information shown on the Preliminary FIRM and FIS
report that satisfies the data requirements outlined in 44 CFR 67.6(b)
is considered an appeal. Comments unrelated to the flood hazard
determinations also will be considered before the FIRM and FIS report
become effective.
    Use of a Scientific Resolution Panel (SRP) is available to
communities in support of the appeal resolution process. SRPs are
independent panels of experts in hydrology, hydraulics, and other
pertinent sciences established to review conflicting scientific and
technical data and provide recommendations for resolution. Use of the
SRP only may be exercised after FEMA and local communities have been
engaged in a collaborative consultation process for at least 60 days
without a mutually acceptable resolution of an appeal. Additional
information regarding the SRP process can be found online at https://www.floodsrp.org/pdfs/srp_overview.pdf.
    The watersheds and/or communities affected are listed in the tables
below. The Preliminary FIRM, and where applicable, FIS report for each
community are available for inspection at both the online location
https://www.fema.gov/preliminaryfloodhazarddata and the respective
Community Map Repository address listed in the tables. For communities
with multiple ongoing Preliminary studies, the studies can be

identified by the unique project number and Preliminary FIRM date
listed in the tables. Additionally, the current effective FIRM and FIS
report for each community are accessible online through the FEMA Map
Service Center at https://msc.fema.gov for comparison.

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

Michael M. Grimm,
Assistant Administrator for Risk Management, Department of Homeland
Security, Federal Emergency Management Agency.

------------------------------------------------------------------------
                                             Community map repository
               Community                             address
------------------------------------------------------------------------
               Osceola County, Iowa and Incorporated Areas
          Project: 16-07-2357S Preliminary Date: June 26, 2019
------------------------------------------------------------------------
City of Ashton.........................  City Hall, 3029 3rd Street,
                                          Ashton, IA 51232.
City of Harris.........................  Mayor's Office, 117 West
                                          Osceola Avenue, Harris, IA
                                          51345.
City of Ocheyedan......................  City Hall, 869 Main Street,
                                          Ocheyedan, IA 51354.
City of Sibley.........................  Sibley Municipal Offices, 808
                                          3rd Avenue, Sibley, IA 51249.
Unincorporated Areas of Osceola County.  Osceola County Courthouse, 300
                                          7th Street, Sibley, IA 51249.
------------------------------------------------------------------------
             Nemaha County, Nebraska and Incorporated Areas
          Project: 16-07-2345S Preliminary Date: August 2, 2019
------------------------------------------------------------------------
City of Auburn.........................  Auburn City Hall, 1101 J
                                          Street, Auburn, NE 68035.
City of Peru...........................  Peru City Hall, 614 5th Street,
                                          Oakland, NE 68421.
Unincorporated Areas of Nemaha County..  Register of Deeds, Nemaha
                                          County Courthouse, 1824 North
                                          Street, Suite 201, Auburn, NE
                                          68305.
Village of Brock.......................  Community Building/Fire Hall,
                                          705 Main Street, Brock, NE
                                          68320.
Village of Brownville..................  Brownville City Hall, 309 Water
                                          Street, Brownville, NE 68321.
Village of Julian......................  Community Building/Fire Hall,
                                          104 West Street, Julian, NE
                                          68379.
Village of Nemaha......................  Nemaha Village Office, 404 1st
                                          Street, Nemaha, NE 68414.
------------------------------------------------------------------------
           Richardson County, Nebraska and Incorporated Areas
          Project: 16-07-2358S Preliminary Date: August 2, 2019
------------------------------------------------------------------------
City of Falls City.....................  City Clerk's Office, 2307
                                          Barada Street, Falls City, NE
                                          68355.
City of Humboldt.......................  City Clerk's Office, 618 3rd
                                          Street, Humboldt, NE 68376.
Iowa Tribe of Kansas and Nebraska......  Iowa Tribal Office, 3345 B
                                          Thrasher Road, White Cloud, KS
                                          66094.
Sac & Fox Nation of Missouri, Kansas     Sac & Fox Tribal Office, 305
 and Nebraska.                            Main Street, Reserve, KS
                                          66434.
Unincorporated Areas of Richardson       Richardson County Clerk, 1700
 County.                                  Stone Street, Falls City, NE
                                          68355.
Village of Dawson......................  Village Clerk's Office, 921
                                          Ridge Street, Dawson, NE
                                          68337.
Village of Preston.....................  Village of Preston Clerk's
                                          Office, 70448 656 Boulevard,
                                          Falls City, NE 68355.
Village of Rulo........................  Village Office, 414 Martin
                                          Street, Rulo, NE 68431.
Village of Salem.......................  Community Building, 205 East
                                          Main Street, Salem, NE 68433.
Village of Stella......................  Community Building, 204 North
                                          Main Street, Stella, NE 68442.
Village of Verdon......................  Village Clerk's Office, 314
                                          Main Street, Verdon, NE 68457.
------------------------------------------------------------------------

[FR Doc. 2020-03899 Filed 2-26-20; 8:45 am]
 BILLING CODE 9110-12-P


[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Notices]
[Pages 1523-1524]
[FR Doc No: 2012-304]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission will hold a Closed Meeting on Thursday, January
12, 2012 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the
Commission, and recording secretaries will attend the Closed Meeting.
Certain staff members who have an interest in the matters also may be
present.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR
200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the
scheduled matters at the Closed Meeting.
    Commissioner Paredes, as duty officer, voted to consider the items
listed for the Closed Meeting in a closed session.
    The subject matter of the Closed Meeting scheduled for Thursday,
January 12, 2012 will be:
    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings;

    Other matters relating to enforcement proceedings; and an
adjudicatory matter.
    At times, changes in Commission priorities require alterations in
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have
been added, deleted or postponed, please contact:
    The Office of the Secretary at<PHONE_NUMBER>.

    Dated: January 5, 2012.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2012-304 Filed 1-6-12; 11:15 am]
BILLING CODE 8011-01-P