83 FR 48779 - Broker and Freight Forwarder Financial Responsibility
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 83, Issue 188 (September 27, 2018)
Federal Motor Carrier Safety Administration
Federal Register Volume 83, Issue 188 (September 27, 2018)
| Page Range | 48779-48787 | |
| FR Document | 2018-21052 |
[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)] [Proposed Rules] [Pages 48779-48787] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21052] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- [[Page 48780]] 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 (202) 385-2367, or by email at jeff.secrist@dot.gov, or Mr. Kenneth Riddle, Office of Registration and Safety Information, at (202) 366-9616 or by email at kenneth.riddle@dot.gov. If you have questions on viewing or submitting material to the docket, contact Docket Services at 202-366-9826. 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 [[Page 48781]] 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\ --------------------------------------------------------------------------- \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.''). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- D. 2016 Public Informal Roundtable Discussion On April 27, 2016, the Agency announced that it would host an [[Page 48782]] 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\ --------------------------------------------------------------------------- \4\ FMCSA-2016-0102-0030 (Oct. 20, 2016). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \5\ This initiative will not pertain to increasing motor carrier minimum financial responsibility limits pursuant to 49 U.S.C. 31138- 31139. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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.'' --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 [[Page 48783]] 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \14\ See Broker and Freight Forwarder Financial Responsibility Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 6 (Oct. 20, 2016). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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 [[Page 48784]] 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 [[Page 48785]] 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 [[Page 48786]] 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 [[Page 48787]] 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 / Vol. 83, No. 188 / Thursday, September 27, 2018 / Proposed Rules 48779
IV. Statutory and Executive Order Act. This rule also is not subject to by Kenneth E. Hardman, on behalf of
Reviews Executive Order 13045 (62 FR 19885, Critical Messaging Association.
April 23, 1997), because it just notifying DATES: Oppositions to the Petition must
General Requirements
the public regarding receipt of the be filed on or before October 12, 2018.
This action is not a ‘‘significant negative declarations. Replies to an opposition must be filed
regulatory action’’ under the terms of In reviewing state plan submissions, on or before October 22, 2018.
Executive Order 12866 (58 FR 51735, EPA’s role is to approve state choices,
October 4, 1993) and therefore is not ADDRESSES: Federal Communications
provided that they meet the criteria of Commission, 445 12th Street SW,
subject to review by the Office of the Act. With regard to negative
Management and Budget under Washington, DC 20554.
declarations for designated facilities
Executive Orders 12866 and 13563 (76 FOR FURTHER INFORMATION CONTACT:
received by EPA from states, EPA’s role
FR 3821, January 21, 2011). For this is to notify the public of the receipt of Nina Shafran, Wireless
reason, this action is also not subject to such negative declarations and revise 40 Telecommunications Bureau, at: (202)
Executive Order 13211, ‘‘Actions CFR part 62 accordingly. In this context, 418–2781; email: Nina.Shafran@fcc.gov.
Concerning Regulations That in the absence of a prior existing SUPPLEMENTARY INFORMATION: This is a
Significantly Affect Energy Supply, requirement for the state to use summary of the Commission’s
Distribution, or Use’’ (66 FR 28355, May voluntary consensus standards (VCS), document, Report No. 3102, released
22, 2001). This action is not an EPA has no authority to disapprove a September 10, 2018. The full text of the
Executive Order 13771 (82 FR 9339, state plan submission or negative Petition is available for viewing and
February 2, 2017) regulatory action declaration for failure to use VCS. It copying at the FCC Reference
because this action is not significant would thus be inconsistent with Information Center, 445 12th Street SW,
under E.O. 12866. This action merely applicable law for EPA, when it reviews Room CY–A257, Washington, DC 20554.
approves state law as meeting Federal a state plan or negative declaration It also may be accessed online via the
requirements and merely notifies the submission, to use VCS in place of a Commission’s Electronic Comment
public of EPA’s receipt of negative state plan or negative declaration Filing System at: http://apps.fcc.gov/
declarations from an air pollution submission that otherwise satisfies the ecfs/. The Commission will not send a
control agency without any existing provisions of the Act. Thus, the Congressional Review Act (CRA)
CISWI or OSWI units in its state. This requirements of section 12(d) of the submission to Congress or the
action imposes no requirements beyond National Technology Transfer and Government Accountability Office
those imposed by the state. Accordingly, pursuant to the CRA, 5.U.S.C.
Advancement Act of 1995 (15 U.S.C.
the Administrator certifies that this rule 801(a)(1)(A), because no rules are being
272 note) do not apply. This rule does
will not have a significant economic adopted by the Commission.
not impose an information collection
impact on a substantial number of small Subject: Amendment of parts 1 and 22
burden under the provisions of the
entities under the Regulatory Flexibility of the Commission’s Rules with Regard
Paperwork Reduction Act of 1995 (44
Act (5 U.S.C. 601 et seq.). Because this to the Cellular Service, Including
U.S.C. 3501 et seq.).
rule pertains to pre-existing Changes in Licensing of Unserved Area,
requirements under state law and does List of Subjects in 40 CFR Part 62 FCC 18–92, published at 83 FR 37760,
not impose any additional enforceable Environmental protection, August 2, 2018, in WT Docket No. 12–
duty beyond that required by state law, Administrative practice and procedure, 40. This document is being published
it does not contain any unfunded pursuant to 47 CFR 1.429(e). See also 47
Air pollution control, Commercial and
mandate or significantly or uniquely CFR 1.4(b)(1) and 1.429(f), (g).
industrial solid waste incinerators,
affect small governments, as described Number of Petitions Filed: 1.
Intergovernmental relations, Other solid
in the Unfunded Mandates Reform Act
waste incinerator units, Reporting and Federal Communications Commission.
of 1995 (Pub. L. 104–4). This rule is not
recordkeeping requirements.
approved to apply on any Indian Marlene Dortch,
reservation land or in any other area Dated: September 13, 2018. Secretary, Office of the Secretary.
where EPA or an Indian tribe has Cathy Stepp, [FR Doc. 2018–20677 Filed 9–26–18; 8:45 am]
demonstrated that a tribe has Regional Administrator, Region 5. BILLING CODE 6712–01–P
jurisdiction. In those areas of Indian [FR Doc. 2018–20967 Filed 9–26–18; 8:45 am]
country, the rule does not have tribal BILLING CODE 6560–50–P
implications and will not impose
substantial direct costs on tribal DEPARTMENT OF TRANSPORTATION
governments or preempt tribal law as
FEDERAL COMMUNICATIONS Federal Motor Carrier Safety
specified by Executive Order 13175 (65
COMMISSION Administration
FR 67249, November 9, 2000). This
action also does not have Federalism
47 CFR Part 22 49 CFR Part 387
implications because it does not have
substantial direct effects on the states, [Docket No. FMCSA–2016–0102]
on the relationship between the national [WT Docket No. 12–40; Report No. 3102]
government and the states, or on the RIN 2126–AC10
Petition for Reconsideration of Action
distribution of power and in Rulemaking Proceeding
daltland on DSKBBV9HB2PROD with PROPOSALS
responsibilities among the various Broker and Freight Forwarder
levels of government, as specified in AGENCY: Federal Communications Financial Responsibility
Executive Order 13132 (64 FR 43255, Commission. Federal Motor Carrier Safety
AGENCY:
August 10, 1999). This action merely ACTION: Petition for reconsideration. Administration (FMCSA), DOT.
provides notice of receipt of negative
ACTION: Advance notice of proposed
declarations, and does not alter the SUMMARY: A Petition for Reconsideration
rulemaking (ANPRM); request for
relationship or the distribution of power (Petition) has been filed in the
comments.
and responsibilities established in the Commission’s Rulemaking proceeding
VerDate Sep<11>2014 16:28 Sep 26, 2018 Jkt 244001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\27SEP1.SGM 27SEP1](https://thefederalregister.org/doc/83_FR_48967/page/1.svg)
![Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Proposed Rules 48783
Requirements for Brokers of Property a group surety or trust option given its Financial), the largest filer of BMC–85s
and Freight Forwarders, 78 FR 54720 limited resources. with FMCSA. At the roundtable, Pacific
(Sep. 5, 2013), the Agency stated that it Financial indicated that Congress
2. Assets Readily Available
would not be accepting group clearly did not limit the term to cash
instruments at that time. 78 FR at 54721. As noted above, Congress issued a only. It also suggested that if a trust
The Agency indicated it would re- clear mandate in MAP–21 that broker/ purchased a bond to cover a $75,000
examine the issue, however. freight forwarder trust funds must guarantee, such an arrangement could
While the term ‘‘group surety bond’’ consist of ‘‘assets readily available to be sufficient.14 Pacific Financial also
does not appear to be commonly used, pay claims without resort to personal filed supplemental materials and
the Agency has identified and examined guarantees or collection of pledged pointed to their own ‘‘internal letter of
a group surety bond provision within accounts receivable.’’ 49 U.S.C. credit’’ as a viable alternative.
the Federal Maritime Commission 13906(b)(1)(C), (c)(1)(D). The Agency is After a careful analysis and with
(FMC) regulations. 46 CFR 515.21. FMC committed to adopting a definition of specific regard for Pacific Financial’s
regulates Ocean Transportation ‘‘assets readily available’’ that comments, the Agency is currently
Intermediaries (OTIs), consisting of implements the will of Congress and is considering proposing a definition of
Non-Vessel Operating Common Carriers reasonable for the Agency to administer ‘‘assets readily available’’ to include
(NVOCCs) (similar to FMCSA-regulated given its resource constraints. cash or FMCSA-approved letters of
Stakeholders provided numerous credit.15 FMCSA is considering
freight forwarders), and freight
comments on the definition of ‘‘assets accepting letters of credit from FDIC-
forwarders (similar to FMCSA-regulated
readily available’’ at the roundtable approved banks, but is also open to
brokers). These OTIs are required to
discussion and in associated written other options.
submit evidence of financial
comments. Avalon Risk Management The Agency solicits suggestions from
responsibility to FMC and can submit
Insurance Agency LLC (Avalon), an the BMC–85 industry and others about
group surety bonds as evidence of such
underwriter of BMC–84 bonds, how the Agency could accept letters of
financial responsibility. In a group suggested in its pre-roundtable
surety bond arrangement, OTI members credit and other instruments that could
comments that cash or certain meet the ‘‘assets readily available’’
pay a fee to belong to a group, which irrevocable letters of credit issued by standard without requiring significant
then provides the required surety bond Federal Deposit Insurance Corporation oversight or evaluation that would
for each member. FMC’s group surety (FDIC)-insured banks would satisfy the divert scarce safety resources. The
bond provision allows the group to standard.10 The Surety & Fidelity Agency also specifically seeks comment
establish financial responsibility in the Association of America (SFAA), also in from the surety bond industry on that
amount required for each individual pre-roundtable comments, looked to industry’s capacity to meet the
member or $3,000,000 in aggregate, other federal law or regulation for a increased market demand if FMCSA
whichever is less. standard.11 In particular, SFAA cited were to adopt a cash-only standard for
FMCSA is concerned that monitoring Federal Acquisition Regulation (FAR) BMC–85 trust funds, which could
whether group instruments comply with 28.204, which, according to SFAA, potentially drive a significant segment
MAP–21 will impose a significant requires that financial security be of the broker/forwarder industry into
administrative burden on the Agency, provided in the form of United States surety bond coverage. Additionally,
potentially to the detriment of safety government bonds or notes, a certified FMCSA seeks comment from the surety
oversight, without providing a or cashier’s check, an irrevocable letter bond industry on the cost to brokers and
commensurate benefit for motor carriers of credit, or other options that are easily freight forwarders of BMC–84 surety
and shippers, the intended beneficiaries convertible into cash. SFAA’s post- bonds.
of the surety bonds and trust funds. The roundtable comment also recommended
benefit to these beneficiaries from group that $75,000 of broker assets need to be 3. Immediate Suspension of Operating
instruments likely would be unchanged, in trust funds.12 In post-roundtable Authority
as the same total level of financial comments, JW Surety Bonds, a company MAP–21 section 32918 provides that
protection would still be required. that issues BMC–84 surety bonds, ‘‘[FMCSA] shall immediately suspend
Further, because FMCSA requires that argued for full funding of the trust with the registration of a broker . . . if the
a trust fund or surety bond cover each non-volatile liquid assets, including available financial security of that
broker or freight forwarder for $75,000, cash or an irrevocable letter of credit person falls below [$75,000].’’ 49 U.S.C.
the FMC surety bond requirement, with from an FDIC-insured bank.13 13906(b)(5); see also 49 U.S.C.
its $3 million cap, does not provide an While FMCSA has heard from 13906(c)(6) (substantively identical
adequate model for the Agency to multiple representatives of the BMC–84 language for freight forwarders).
ensure levels of financial security as industry on an appropriate definition of Accordingly, to effectively implement
contemplated by the statute. In addition, ‘‘assets readily available,’’ it has heard
the Agency has been unable to locate little from the BMC–85 industry. We 14 See Broker and Freight Forwarder Financial
any definition for group trust funds. received only one comment, from the Responsibility Roundtable Discussion Notes,
Therefore, with no adequate model for Chief Executive Officer of Pacific Docket No. FMCSA–2016–0102–0030, at 6 (Oct. 20,
2016).
group surety bonds or trusts funds, the Financial Association, Inc. (Pacific 15 Before MAP–21, the Agency signaled its view
Agency is not currently inclined to that broker trust funds must consist of cash. In
accept group sureties or trust funds. 10 See Comments of Avalon Risk Management
describing a delayed effective date for the increase
daltland on DSKBBV9HB2PROD with PROPOSALS
Insurance Agency LLC, Docket No. FMCSA–2016– of the surety bond/trust fund requirement from
Before the Agency considers the matter 0102–0014, at 3–4 (May 18, 2016). $10,000 to $25,000 for HHG brokers in its 2010
of group surety or trust arrangements 11 See Comments of The Surety & Fidelity
HHG broker rulemaking, the Agency stated ‘‘for
further for purposes of developing a Association of America, Docket No. FMCSA–2016– those household goods brokers using trust fund
notice of proposed rulemaking (NPRM) 0102–0011, at 2 (May 9, 2016). agreements, this should give sufficient time for
12 See Comments of The Surety & Fidelity
in this docket, we specifically seek these entities to raise the additional $15,000 of
Association of America, Docket No. FMCSA–2016– capital to place in escrow with their trust fund
comment on the definition of ‘‘group 0102–0022, at 2–3 (June 7, 2016). managers.’’ Brokers of Household Goods
surety bond’’ or ‘‘group trust fund’’ and 13 See Comments of JW Surety Bonds, Docket No. Transportation by Motor Vehicle. 75 FR 72987,
how the Agency could administer such FMCSA–2016–0102–0023, at 5, 8 (June 10, 2016). 72992 (Nov. 29, 2010).
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![48786 Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Proposed Rules
types of property transportation. Given The Department has determined this C. Small Business Regulatory and
those differences, FMCSA seeks ANPRM is a ‘‘significant regulatory Enforcement Fairness Act
information on whether HHG brokers action’’ under E.O. 12866, and FMCSA has not yet determined
and freight forwarders should be significant under DOT regulatory whether an Initial Regulatory Flexibility
regulated differently than general policies and procedures due to Analysis (IRFA) will be required for any
property brokers and freight forwarders significant public interest in the legal of the eight enumerated alternatives
in a rulemaking on broker/freight and policy issues addressed. Therefore, listed above. However, if an IRFA is
forwarder financial responsibility. this document has been reviewed by required, FMCSA is considering holding
FMCSA notes that we have received OMB. one or more Small Business Regulatory
complaints about HHG brokers,34 and
B. E.O. 13771 Reducing Regulation and Panels. If you are a small business who
we solicit comments to help determine
Controlling Regulatory Costs would like to be included in such a
whether there is a unique market
panel, please submit a comment
structure that might suggest need for E.O. 13771 (82 FR 9339, February 3, indicating as such. The Agency also
additional fraud protections. 2017), Reducing Regulation and
FMCSA is also seeking information on seeks comment on the small business
Controlling Regulatory Costs, requires impacts of the Agency’s suggested
the payment flows among HHG
that for ‘‘every one new [E.O. 13771 courses of action in this ANPRM.
shippers, brokers and motor carriers.
regulatory action] issued, at least two
The Agency is aware of arrangements VI. Comments Sought
prior regulations be identified for
where HHG shippers pay HHG brokers
elimination, and that the cost of The Agency specifically seeks
a deposit and then pay the remainder of
planned regulations be prudently comments and data from the public in
the transportation charges directly to the
managed and controlled through a response to this ANPRM. We request
HHG motor carrier. Under these
budgeting process.’’ Implementation that commenters address their
arrangements, the Agency believes no
monies pass directly between the broker guidance for E.O. 13771 issued by the comments specifically to the
and motor carrier. FMCSA seeks Office of Management and Budget enumerated list of issues below, and
information on the prevailing payment (OMB) (Memorandum M–17–21, April that commenters number their
models in the HHG broker industry in 5, 2017) defines two different types of comments to correspond to each issue.
this ANPRM. E.O. 13771 actions: An E.O. 13771 FMCSA anticipates some of the
deregulatory action, and an E.O. 13771 information and data sought may
V. Rulemaking Analyses regulatory action. include CBI, and these comments
A. Executive Order (E.O.) 12866 An E.O. 13771 deregulatory action is should be filed in accordance with the
(Regulatory Planning and Review) and defined as ‘‘an action that has been requirements of 49 CFR 389.9 Treatment
DOT Regulatory Policies and Procedures finalized and has total costs less than of confidential business information and
zero.’’ the instructions above under the
Under E.O. 12866, ‘‘Regulatory subheading Confidential Business
Planning and Review’’ (issued An E.O. 13771 regulatory action is Information under the headings
September 30, 1993, published October defined as: ADDRESSES and Public Participation and
4 at 58 FR 51735), as supplemented by (i) A significant action as defined in Request for Comments.
E.O. 13563 and DOT policies and Section 3(f) of E.O. 12866 that has been 1. FMCSA specifically seeks comment
procedures, if a regulatory action is finalized, and that imposes total costs on the definition of ‘‘group surety bond’’
determined to be ‘‘significant,’’ it is greater than zero; or or ‘‘group trust fund’’ and how the
subject to Office of Management and Agency could administer such a group
Budget (OMB) review. E.O. 12866 (ii) a significant guidance document
(e.g., significant interpretive guidance) surety or trust option given its limited
defines ‘‘significant regulatory action’’ resources.
as one likely to result in a rule that may: reviewed by OIRA under the procedures
of E.O. 12866 that has been finalized 2. The Agency solicits suggestions
(1) Have an annual effect on the
and that imposes total costs greater than from the trust fund industry and others
economy of $100 million or more or
zero. about instruments the Agency could
adversely affect in a material way the
accept that would meet the ‘‘assets
economy, a sector of the economy, The Agency action, in this case a readily available’’ standard without
productivity, competition, jobs, the rulemaking, must meet both the requiring significant FMCSA oversight
environment, public health or safety, or significance and the total cost criteria to or evaluation that would divert scarce
State, local, or Tribal governments or be considered an E.O. 13771 regulatory
communities. safety oversight resources.
action. As the Department has 3. The Agency specifically seeks
(2) Create a serious inconsistency or determined this ANPRM is a
otherwise interfere with an action taken comment from the surety bond industry
‘‘significant regulatory action’’ under on that industry’s capacity to meet the
or planned by another Agency. E.O. 12866, and significant under DOT
(3) Materially alter the budgetary increased market demand if FMCSA
regulatory policies and procedures due were to adopt a cash-only standard for
impact of entitlements, grants, user fees, to significant public interest in the legal
or loan programs or the rights and BMC–85 trust funds, which could
and policy issues addressed, it meets potentially drive a significant segment
obligations of recipients thereof. the significance criterion for being an
(4) Raise novel legal or policy issues of the broker/forwarder industry into
E.O. 13771 regulatory action; however, surety bond coverage.
arising out of legal mandates, the
daltland on DSKBBV9HB2PROD with PROPOSALS
the requirements of E.O. 13771 do not 4. FMCSA seeks comment and data
President’s priorities, or the principles
apply to pre-notice of proposed from the surety bond industry on the
set forth in the E.O.
rulemakings such as ANPRMs. cost to brokers and freight forwarders of
34 Through its National Consumer Complaint FMCSA specifically seeks comment BMC–84 surety bonds.
Database (NCCDB), in Fiscal Year 2017, the Agency on how the Agency should analyze 5. The Agency will consider how it
received 626 valid HHG complaints regarding HHG various aspects of a possible NPRM in could ‘‘immediately suspend’’ broker/
broker activity, primarily ‘‘low ball’’ estimates,
where the broker estimates an artificially low price this proceeding and how the Agency freight forwarder operating authority
that the delivering carrier does not honor. could limit possible burdens on entities. registration in a manner that is
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![Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Proposed Rules 48787
consistent with constitutional due preventing these transactions from and in Joplin, MO, and will be webcast
process requirements, e.g., by providing taking place efficiently? for the benefit of those not able to attend
an appropriate opportunity for post- 15. FMCSA specifically seeks in person. The listening sessions will
deprivation review. FMCSA invites comment on how the Agency should allow interested persons to present
comments responsive to this issue, analyze various requirements for a comments, views, and relevant research
including documented incidence of possible NPRM to meet the on topics mentioned above. All
actual nonpayment that occurred after requirements of E.O. 12866 and 13771, comments will be transcribed and
problem brokers or freight forwarder and how the Agency could limit placed in the rulemaking docket for the
were not ‘‘immediately’’ suspended. possible burdens on regulated entities. FMCSA’s consideration.
6. FMCSA seeks comment on the 16. FMCSA requests comments on DATES: The listening sessions will be
appropriate cushion time for brokers or any other aspects of implementing September 28, 2018, in Joplin, MO, from
freight forwarders to respond to claims section 32918 that may be necessary and 3:30–5 p.m., CDT, and on October 2,
made to the guarantors, valid or how these areas could be implemented 2018, in Orlando, FL, from 9:30–11:30
otherwise. Such a grace period would in a way that would not divert scarce a.m., EDT. The sessions will end earlier
seem to give firms adequate time to safety oversight resources. if all participants wishing to express
adjudicate claims and settlements 17. FMCSA requests comment on the their views have done so.
internally, as well as price in the costs small business impacts of its suggested ADDRESSES: The September 28, 2018,
associated with any claims relating to courses of action in this ANPRM. session will be held at 4 State Trucks,
contract noncompliance. Issued under the authority of delegation in 4579 MO–43, Joplin, MO 64804. The
7. The Agency seeks comments on the 49 CFR 1.87: September 21, 2018. October 2, 2018, session will be held at
how ‘‘financial failure or insolvency’’ Raymond P. Martinez, MetroPlan Orlando, 250 S Orange Ave.,
and ‘‘publicly advertise’’ should be Administrator. Suite 200, Orlando, FL 32801.
defined under MAP–21 Section 32918. [FR Doc. 2018–21052 Filed 9–26–18; 8:45 am] You may submit comments identified
8. The Agency seeks input on the BILLING CODE 4910–EX–P by Docket Number FMCSA–2018–0248
development of surety suspension using any of the following methods:
procedures authorized pursuant to 49 • Federal eRulemaking Portal: http://
U.S.C. 13906(b)(7) and (c)(8). DEPARTMENT OF TRANSPORTATION www.regulations.gov. Follow the online
9. The Agency requests comments instructions for submitting comments.
regarding whether FMCSA should Federal Motor Carrier Safety • Mail: Docket Management Facility,
require BMC–85 trust fund providers to Administration U.S. Department of Transportation, 1200
be licensed as trust providers and how New Jersey Avenue SE, West Building,
49 CFR 387.307(c)(7) (loan or finance 49 CFR Part 395 Ground Floor, Room W12–140,
company) could be amended to ensure Washington, DC 20590–0001.
[Docket No. FMCSA–2018–0248]
that adequate monitoring of BMC–85 • Hand Delivery or Courier: West
providers’ ability to pay claims is taking RIN 2126–AC19 Building, Ground Floor, Room W12–
place. 140, 1200 New Jersey Avenue SE,
10. The Agency anticipates the need Hours of Service Washington, DC, between 9 a.m. and 5
for revisions to the BMC–84 and BMC– AGENCY: Federal Motor Carrier Safety p.m., Monday through Friday, except
85 forms if rulemaking is proposed. Administration (FMCSA), DOT. Federal holidays.
FMCSA requests comments to identify ACTION: Notice of public listening
• Fax: 202–493–2251.
suggested changes to the forms. sessions. • Submissions Containing
11. FMCSA seeks information on Confidential Business Information (CBI):
whether HHG brokers and freight SUMMARY: The FMCSA announces two Mr. Brian Dahlin, Chief, Regulatory
forwarders should be regulated additional public listening sessions on Evaluation Division, 1200 New Jersey
differently than general property brokers potential changes to its hours-of-service Avenue SE, Washington, DC 20590.
and freight forwarders in a rulemaking (HOS) rules for truck drivers. On August To avoid duplication, please use only
on broker/freight forwarder financial 23, 2018, FMCSA published an Advance one of these four methods. See the
responsibility. Notice of Proposed Rulemaking ‘‘Public Participation and Request for
12. FMCSA solicits comments to help (ANPRM) seeking public comment on Comments’’ portion of the
determine whether there is a unique four specific aspects of the HOS rules SUPPLEMENTARY INFORMATION section for
market structure in the HHG broker for which the Agency is considering instructions on submitting comments,
market that might suggest the need for changes: The short-haul HOS limit; the including collection of information
additional fraud protections for shippers HOS exception for adverse driving comments for the Office of Information
utilizing HHG brokers. conditions; the 30-minute rest break and Regulatory Affairs, OMB.
13. FMCSA seeks information on the provision; and the sleeper berth rule to FOR FURTHER INFORMATION CONTACT: For
prevailing payment models and allow drivers to split their required time special accommodations for the HOS
payment flows among HHG shippers, in the sleeper berth. In addition, the listening sessions, such as sign language
motor carriers and brokers. Agency requested public comment on interpretation, contact Ms. Shannon L.
14. While noting the MAP–21 petitions for rulemaking from the Watson, Senior Advisor to the Associate
requirements, FMCSA is seeking Owner-Operator Independent Drivers Administrator for Policy, Federal Motor
daltland on DSKBBV9HB2PROD with PROPOSALS
comment on whether the market is Association (OOIDA) and Carrier Safety Administration, U.S.
capable of addressing these issues. For TruckerNation.org (TruckerNation). The Department of Transportation, 1200
example, if a broker/freight forwarder Agency encourages vendors of New Jersey Avenue SE, Washington, DC
has a history of noncompliance with electronic logging devices (ELDs) to 20590, at (202) 385–2395 or
contracts, would surety/trust firms be participate to address potential shannon.watson@dot.gov, two weeks in
less likely to back them or charge a implementation issues should changes advance of each session to allow us to
higher premium/trust management fee? to the HOS rules be made. The listening arrange for such services. For
Is there a market failure that is sessions will be held in Orlando, FL, information on the listening sessions,
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Document Created: 2018-09-27 01:04:32
Document Modified: 2018-09-27 01:04:32
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Advance notice of proposed rulemaking (ANPRM); request for comments. | |
| Dates | Comments on this document must be received on or before November 26, 2018. | |
| Contact | For information concerning this ANPRM, contact Mr. Jeff Secrist, Office of Registration and Safety Information, at (202) 385-2367, 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] | |
| FR Citation | 83 FR 48779 | |
| RIN Number | 2126-AC10 |
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