ANPRM, Brokers of Household Goods by Motor Vehicle

76664

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules

652.228–71 Workers’ Compensation
Insurance (Defense Base Act)—Services.

As prescribed in 628.309–70(b), insert
the following clause:
Workers’ Compensation Insurance (Defense
Base Act)—Services (MO/YR)
(a) This clause supplements FAR 52.228–
3. For the purposes of this clause, ‘‘covered
contractor employees’’ includes the following
individuals:
(1) United States citizens or residents;
(2) Individuals hired in the United States
or its possessions, regardless of citizenship;
and
(3) Local nationals and third country
nationals where contract performance takes
place in a country where there are no local
workers’ compensation laws.
(b) The Contractor shall procure Defense
Base Act (DBA) insurance pursuant to the
terms of the contract between the Department
of State and the Department’s DBA insurance
carrier for covered contractor employees,
unless the Contractor has a DBA selfinsurance program approved by the
Department of Labor. The Contractor shall
submit a copy of the Department of Labor’s
approval to the contracting officer upon
contract award, if applicable.
(c) The current rate under the Department
of State contract is [contracting officer insert
rate] of compensation for services.
(d) The Contractor shall insert a clause
substantially the same as this in all
subcontracts. The Contractor shall require
that subcontractors insert a similar clause in
any of their subcontracts.
(e) Should the rates for DBA insurance
coverage increase or decrease during the
performance of this contract, the contracting
officer shall modify this contract accordingly.
(f) The Contractor shall demonstrate to the
satisfaction of the contracting officer that the
equitable adjustment as a result of the
insurance increase or decrease does not
include any reserve for such insurance.
Adjustment shall not include any overhead,
profit, general and administrative expenses,
etc.
(g) Section 16 of the State Department
Basic Authorities Act (22 U.S.C. 2680a), as
amended, provides that the Defense Base Act
shall not apply with respect to such contracts
as the Secretary of States determines are
contracts with persons employed to perform
work for the Department of State on an
intermittent basis for not more than 90 days
in a calendar year. ‘‘Persons’’ includes
individuals hired by companies under
contract with the Department. The
Procurement Executive has the authority to
issue the waivers for these Contractor
employees. For those employees, the
Contractor shall provide workers’
compensation coverage against the risk of
work injury or death and assume liability
toward the employees and their beneficiaries
for war-hazard injury, death, capture, or
detention.
(End of clause)
Alternate I. (MO/YR) If the contract is for
construction, as prescribed in 628.309–70(a),
substitute the following paragraph (c) for
paragraph (c) of the basic clause:

VerDate jul<14>2003

19:56 Dec 21, 2004

Jkt 205001

(c) The current rate under the Department
of State contract is [contracting officer insert
rate] of compensation for construction.

8. Section 652.228–74 is revised to
read as follows:
652.228–74 Defense Base Act Insurance
Rates—Limitation.

As prescribed in 628.309–70(c), insert
the following provision:
Defense Base Act Insurance Rates—
Limitation (MO/YR)
(a) The Department of State has entered
into a contract with an insurance carrier to
provide Defense Base Act (DBA) insurance to
Department of State covered contractor
employees at a contracted rate. For the
purposes of this provision, ‘‘covered
contractor employees’’ includes the following
individuals:
(1) United States citizens or residents;
(2) Individuals hired in the United States
or its possessions, regardless of citizenship;
and
(3) Local nationals and third country
nationals where contract performance takes
place in a country where there are no local
workers’ compensation laws.
(b) In preparing the cost proposal, the
bidder/offeror shall use the following rates in
computing the cost for DBA insurance:
Services @ [contracting officer insert
current rate] of compensation; or
Construction @ [contracting officer insert
current rate] of compensation.
(c) Bidders/offerors shall compute the total
compensation (direct salary plus differential,
but excluding per diem, housing allowance
and other miscellaneous allowances) to be
paid to covered contractor employees and the
cost of the DBA insurance in their bid/offer
using the foregoing rate. The DBA insurance
cost shall be included in the total fixed price
or estimated cost. The Department shall
reimburse the DBA insurance costs directly
to the Contractor.
(End of provision)

9. Section 652.228–76 is removed.
Corey M. Rindner,
Procurement Executive, Bureau of
Administration, Department of State.
[FR Doc. 04–27990 Filed 12–21–04; 8:45 am]
BILLING CODE 4710–24–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 371
[Docket No. FMCSA–2004–17008]
RIN 2126–AA84

Brokers of Household Goods by Motor
Vehicle
Federal Motor Carrier Safety
Administration (FMCSA), DOT.

AGENCY:

PO 00000

Frm 00039

Fmt 4702

Sfmt 4702

Advance notice of proposed
rulemaking (ANPRM); request for
comments on petition for rulemaking.

ACTION:

SUMMARY: FMCSA seeks comments on
whether additional regulations for
property brokers of household goods
(HHG) in interstate or foreign commerce
are necessary and, if so, what these
regulations should include. We have
granted a petition from the American
Moving and Storage Association to
initiate this ANPRM. HHG property
brokers sell, offer for sale, negotiate for,
or hold themselves out by solicitation,
advertisement, or otherwise as selling,
providing, or arranging for,
transportation of HHG in interstate
commerce by motor carriers for
compensation. This action is necessary
to help determine whether the general
property broker regulations have failed
to adequately protect consumers during
HHG transportation.
DATES: You must submit comments
concerning this ANPRM on or before
February 22, 2005.
ADDRESSES: You may submit general
comments identified by DOT Docket
Management System Number FMCSA–
2004–17008 by any of the following
methods:
• Web site: http://dms.dot.gov.
Follow the instructions for submitting
comments on the DOT electronic docket
site.
• Fax: 1–202–493–2251.
• Mail: Docket Management Facility;
U.S. Department of Transportation, 400
Seventh Street, SW., Nassif Building,
Room PL–401, Washington, DC 20590–
0001.
• Hand Delivery: Room PL–401 on
the plaza level of the Nassif Building,
400 Seventh Street, SW., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
http://www.regulations.gov. Follow the
online instructions for submitting
comments.
Instructions: All submissions must
include the agency name and docket
number or Regulatory Identification
Number for this potential regulatory
action. Note that all comments received
will be posted without change to
http://dms.dot.gov, including any
personal information provided. Please
see the Privacy Act heading for further
information.
FOR FURTHER INFORMATION CONTACT: Mr.
Jim Keenan, (202) 385–2400,
Commercial Enforcement Division (MC–
ECI), FMCSA, 400 Seventh Street, SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION: Docket:
For access to the docket to read

E:\FR\FM\22DEP1.SGM

22DEP1

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules
background documents or comments
received, go to http://dms.dot.gov at any
time or to Room PL–401 on the plaza
level of the Nassif Building, 400
Seventh Street, SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Privacy Act: Anyone is able to search
the electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or signing the comment,
if submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477). This statement is also available
at http://dms.dot.gov.
History of Our Property Broker
Regulations
We and our predecessor agencies, the
Interstate Commerce Commission (ICC)
and Federal Highway Administration,
have regulated property brokers for
many years. The ICC decided on May
16, 1949 (Ex Parte MC–39 ‘‘Practices of
Property Brokers,’’ 49 M.C.C. 277, at
286) that it was necessary to regulate all
property brokers, including HHG
brokers 1, in interstate or foreign
commerce. In that proceeding, the ICC
decided it was unnecessary to regulate
HHG brokers separately from general
freight brokers.
The Motor Carrier Safety
Improvement Act of 1999, Pub. L. 106–
159, December 9, 1999, 113 Stat. 1748,
in establishing FMCSA, granted to us
continued regulatory oversight of the
property broker regulations.
Brokers’ Increasingly Significant Role
Brokers generally, and HHG brokers
in particular, have played an
increasingly significant role over the last
26 years in the transportation industry.
Their role, when executed properly, is
that of an arranger of transportation.
1 HHG

brokers are not themselves HHG motor
carriers (persons providing motor vehicle
transportation of HHG) or HHG freight forwarders.
HHG freight forwarders are persons holding
themselves out to the general public (other than as
motor carriers) to provide transportation of HHG,
unaccompanied baggage, or used automobiles for
compensation. In the ordinary course of an HHG
freight forwarder’s business, it:
(A) Assembles and consolidates, or provides for
assembling and consolidating, shipments and
performs or provides for break-bulk and
distribution operations of the shipments;
(B) Assumes responsibility for the transportation
from the place of receipt to the place of destination;
and
(C) Uses for any part of the transportation motor
carriers or water carriers (persons providing water
transportation for compensation) subject to
jurisdiction under subtitle IV of title 49 of the ICC
Termination Act of 1995, Pub. L. 104–88, December
29, 1995, 109 Stat. 803.

VerDate jul<14>2003

19:17 Dec 21, 2004

Jkt 205001

This role is very helpful to the small
commercial shipper, and to the
unsophisticated consumer that is
shipping HHG. However, since Congress
substantially deregulated the motor
carrier, broker, and freight forwarder
industry through the ICC Termination
Act of 1995, Pub. L. 104–88, December
29, 1995, 109 Stat. 803 (ICCTA), FMCSA
has received complaints that a segment
of the industry may be engaging in
unscrupulous business practices which
defraud motor carriers as well as
consumers. The Internet has become a
very convenient medium that allows
HHG brokers to expand their customer
base by advertising their services to a
wider range of customers. News media
have reported that many consumers
now use the Internet to seek the best
possible prices for all of their consumer
purchases, including transportation of
HHG.
Many of the complaints the agency
receives involve HHG brokers who
mislead consumers with lures of
inexpensive transportation charges. In a
typical case, the HHG broker enters into
a contract with the consumer, takes a
sizeable deposit, and arranges to have a
motor carrier handle the shipment.
When the shipper’s goods are in the
possession of the carrier, the carrier
then demands additional freight
charges. The complaints we receive
show when problems between the
consumer and motor carrier arise, the
HHG broker disavows any responsibility
for the motor carrier’s actions, despite
the HHG broker’s role in acquiring the
carrier’s services on behalf of the
shipper. FMCSA has not proven
collusion or conspiracy between brokers
and carriers in these cases. However, we
believe this is an area of transportation
that deserves further attention. We need
to determine how extensive our role
should be in regulating the HHG broker
industry.
Current Regulations
HHG brokers must comply with the
regulations in 49 CFR part 371, which
apply to all regulated property brokers.
We summarize these regulations below.
49 CFR Part 365—Rules Governing
Applications for Operating Authority
A broker must register with us in
accordance with part 365.
49 CFR Part 366—Designation of
Process Agent
A broker must file designations of
persons upon whom court process may
be served. Every broker must make a
designation for each State in which its
offices are located or in which contracts
will be written.

PO 00000

Frm 00040

Fmt 4702

Sfmt 4702

76665

49 CFR Part 387 Subpart C—Surety
Bonds and Policies of Insurance for
Motor Carriers and Property Brokers
A broker must have a surety bond or
trust fund in effect for $10,000. The
FMCSA will not issue a property broker
license until a surety bond or trust fund
for the full limits of liability prescribed
is in effect. The broker license will
remain valid or effective only as long as
a surety bond or trust fund remains in
effect and will ensure a minimum level
of financial responsibility for the broker.
49 CFR 371.3
Brokers

Records To Be Kept by

A broker must keep a record of each
of its transactions, and keep the records
for three years. Each party to a brokered
transaction has the right to review the
record of the transaction applicable to
them. For example, motor carriers
accepting transportation shipments from
brokers have the right to review any of
the required documents retained by
brokers. Shippers also are entitled to
examine broker records containing the
motor carrier’s address and USDOT
number. Brokers may keep master lists
of consignors and the address and
registration number of the motor carrier,
rather than repeating this information
for each transaction. Each transaction
record must show:
(1) The name and address of the
consignor;
(2) The name, address, and
registration number of the originating
motor carrier;
(3) The bill of lading or freight bill
number;
(4) The amount of compensation
received by the broker for the brokerage
service performed and the name of the
payer;
(5) A description of any nonbrokerage service performed in
connection with each shipment or other
non-brokerage activity, the amount of
compensation received for the service,
and the name of the payer; and
(6) The amount of any freight charges
collected by the broker and the date of
payment to the motor carrier.
49 CFR 371.7

Misrepresentation

A broker must not perform or offer to
perform any brokerage service
(including advertising) in any name
other than that in which FMCSA or one
of our predecessor agencies has issued
its registration. A broker must not,
directly or indirectly, represent its
operations to be that of a motor carrier.
Any advertising must show the true
nature of the broker role in services
offered.

E:\FR\FM\22DEP1.SGM

22DEP1

76666

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules

49 CFR 371.9 Rebating and
Compensation
A broker must not charge or receive
compensation from a motor carrier for
brokerage service where: (1) The broker
owns or has a material beneficial
interest in the shipment; or (2) the
broker is able to exercise control over
the shipment because it owns the
shipper, the shipper owns the broker or
there is common ownership of the two.
A broker must not give or offer to give
anything of value to any consumer,
consignor, or consignee (or their officers
or employees), except inexpensive
advertising items given for promotional
purposes.
49 CFR 371.10 Duties and Obligations
of Brokers
Where the broker acts on behalf of a
person bound by law, or our regulation,
as to the transmittal of bills or
payments, the broker must also abide by
the law or regulations which apply to
that person.
49 CFR 371.13 Accounting
Each broker who engages in any other
business must maintain accounts so that
the revenues and expenses relating to
the brokerage portion of its business are
segregated from its other activities.
Expenses that are common must be
allocated on an equitable basis;
however, the broker must be prepared to
explain the basis for the allocation to us
and the courts.
49 CFR 375.409 May Household Goods
Brokers Provide Estimates?
We published an Interim Final Rule
(IFR) applying to operations of HHG
motor carriers on June 11, 2003 (68 FR
35064). We developed the rule to
improve public understanding of our
commercial rules, and to help
consumers understand their roles and
responsibilities along with those of HHG
motor carriers to prevent moving
disputes. We inserted § 375.409 in the
IFR in an effort to make HHG carriers
more responsible for the actions of HHG
brokers who provide estimates on their
behalf. Twenty-seven years ago, the ICC
concluded that brokers were prohibited
from providing estimates because the
duty to comply with the HHG
regulations rests with the motor carrier,
and shippers aggrieved by an act or
omission of a broker would be
unprotected by our regulations. In Entry
Control of Brokers, 126 M.C.C. 476, 520
(1977), the ICC stated:
For example, if a broker provides a c.o.d.
[cash on delivery] shipper with an estimate
it has made, on which the shipper relies, the
shipper would be deprived of the protection
of 49 CFR 1056.8(b) [now 49 CFR

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

375.405(b)(8)] of the household goods
regulations, which provides that where the
transportation charges exceed a carrier-made
estimate by more than 10 percent, the
shipper must pay only 110 percent of the
charges upon delivery and is given a period
of 15 days following delivery to make
payment in full. Since this protection applies
only to carrier-made estimates, a c.o.d.
shipper who relies upon an incorrect
estimate of a broker will have to pay the
carrier’s entire freight charges upon delivery,
regardless of the extent the actual charges
might exceed the broker’s estimate.

As we noted in the preamble to the
IFR (June 11, 2003, 68 FR 35078),
although brokers may not enter into
agency agreements with HHG motor
carriers because they are required to
exercise discretion in allocating traffic
among carriers, we believe it is
permissible for a motor carrier to enter
into a more limited type of agreement
authorizing the broker to provide
estimates on behalf of the motor carrier.
Under such an agreement, the motor
carrier must adopt the broker’s estimate
as a carrier-issued estimate and
incorporate it into the order for service
and bill of lading for purposes of
compliance with part 375, particularly
the 110 percent rule. We believe that
under these circumstances, the
individual shipper would not be
deprived of the protections provided in
part 375 because the carrier would still
be held accountable for complying with
that part. However, an HHG broker may
not issue an estimate without entering
into such an agreement with an HHG
motor carrier because otherwise the
requirements of part 375 would not
apply to the broker-issued estimate.
Thus, the IFR authorized an HHG broker
to provide estimates, but only if it has
a written agreement with the carrier
under which the carrier agrees to adopt
the estimate as its own.
Petition for Rulemaking
The American Moving and Storage
Association (AMSA) petitioned us on
March 6, 2003, to initiate a rulemaking
to amend 49 CFR part 371, ‘‘Brokers of
Property,’’ by imposing specific
requirements on HHG brokers. AMSA’s
petition is in the docket. Title 49 U.S.C.
subtitle IV, part B and 49 CFR 1.73
authorize us to adopt regulations for
property brokers of HHG in interstate or
foreign commerce.
AMSA asserts there are increasing
numbers of ‘‘moving-related’’ Web sites
hosted by unscrupulous HHG brokers,
which have resulted in numerous
complaints from consumers who use the
Internet to secure the services of an
HHG motor carrier.
AMSA’s petition states a significant
number of the complaints it receives

PO 00000

Frm 00041

Fmt 4702

Sfmt 4702

involve the same Internet companies,
many of which are based in Florida.
AMSA argues the fact these companies
are involved in moves having no
connection to Florida as an origin or
destination demonstrates the impact of
the Internet on these HHG broker
arrangements and how the Internet is
being used to entrap unsuspecting
consumers. AMSA states it often
receives complaints from consumers
who have dealt with a Florida-based
Internet broker, who in turn arranged a
move from a non-Florida origin to
another non-Florida destination. AMSA
states once these brokers establish a
business relationship with the
consumer, they require payment of a
deposit of several hundred dollars or
more, fade from the picture, and leave
the consumer to deal with, in most
cases, a motor carrier who has failed to
register with FMCSA. AMSA believes
that a significant network of
unscrupulous HHG brokers and HHG
motor carriers is functioning with the
sole purpose of bilking the moving
public by demanding charges that bear
no relation to the legitimate costs of
moving, or by collecting charges for
services that are not performed.
AMSA provided ten additional
examples of complaints it has received
to illustrate the nature of the problems
being experienced by the moving
public. The examples generally involve
circumstances similar to the Florida
example discussed in the previous
paragraph.
AMSA wants us to amend our
regulations to:
• Specifically name and include HHG
brokers in 49 CFR part 371, Brokers of
Property;
• Require an HHG broker to identify
itself as a broker and provide its
location and telephone number;
• Add a requirement for HHG brokers
to provide consumers with 49 CFR part
375, Appendix A, the pamphlet ‘‘Your
Rights and Responsibilities When You
Move;’’
• Add a requirement that an HHG
broker must only use FMCSA-registered
HHG motor carriers (those with a U.S.
DOT identification number, insurance
on file with us, and registered to
transport HHG in interstate or foreign
commerce);
• Add a requirement for full written
disclosure concerning estimates in
advance of the move;
• Add a requirement that the broker
will refund consumer deposits if the
consumer cancels the shipment;
• Add a requirement to advise the
consumer about the existence of the
HHG broker’s surety bond/trust fund;
and

E:\FR\FM\22DEP1.SGM

22DEP1

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules
• Add a requirement to report illegal
operations of HHG carriers to us.
AMSA’s concerns include lack of
public awareness and advertising
practices of unscrupulous HHG brokers.
AMSA argues that its suggested
regulations would:
• Fill an existing regulatory gap; and
• Ensure that HHG brokers do not use
the Internet as a device to avoid
regulation.
AMSA suggests that we consider a
regulatory solution applying only to
brokers of HHG. It explains that the
primary concept underlying its
regulatory solution is disclosure. Its
regulatory alternative would apply
regardless of the medium through which
services are advertised and would
therefore ensure that the Internet is not
used as a device to avoid regulation.
Suggested Definitions in Present Section
371.2
AMSA suggests we consider adding
paragraphs (e) and (f), defining
‘‘household goods broker’’ and
‘‘individual shipper.’’ AMSA said it
designed its definitions to mirror the
definitions of ‘‘household goods’’ and
‘‘brokers’’ contained in the statute, and
the definition of ‘‘shipper’’ contained in
the consumer protection regulations
under 49 CFR part 375 applicable to
HHG motor carriers. AMSA suggests we
consider amending paragraph (c) to
include the transportation of HHG
within the definition of brokerage
service.
Suggested Section 371.14
AMSA suggests we consider adding a
new § 371.14 applicable only to HHG
brokers.
Suggested paragraph (a) would
subject HHG brokers to both the existing
and the new regulations.
Suggested paragraph (b) would
require the HHG broker to identify
whether it has HHG broker or HHG
motor carrier authority, and reveal its
location and telephone number so that
customers can communicate with a
person. AMSA states it designed this
paragraph to remove the cloak of
anonymity.
Suggested paragraph (c) would
require HHG brokers to use only
FMCSA-registered HHG motor carriers
in an effort to eliminate or reduce the
use of unauthorized carriers. AMSA
believes this will help ensure that the
HHG motor carrier performing service
has insurance, offers arbitration, is a
responsible entity in the event of a
dispute, and otherwise is held to the
requirements of the consumer
protection regulations under 49 CFR
part 375.

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

Suggested paragraph (d) would
require HHG brokers to provide the
pamphlet, ‘‘Your Rights and
Responsibilities When You Move’’ to
shippers, explain HHG motor carrier
liability for loss and damage, and advise
consumers of the availability of
arbitration.
AMSA believes it is appropriate that
the broker provide this information
when first contacted by the consumer.
AMSA argues our regulations presently
require HHG motor carriers to furnish
this information, but often times HHG
motor carriers do not provide it. The
overlapping requirement would serve to
provide a safety net for consumers to
ensure that they receive this important
information.
Suggested paragraphs (e), (f), (g) and
(h) would require full written disclosure
in advance regarding shipment charges.
A persistent source of disputes among
HHG motor carriers, brokers, and
shippers involves estimates of shipment
charges. AMSA states some estimates
are simply inaccurate, while others are
deliberately deceptive. AMSA believes
this is often the case with Internet
quotes given solely on the basis of a
customer’s oral or electronic description
of the goods to be transported without
an actual physical shipment survey.
AMSA also believes disputes arise when
brokers do not inform individual
shippers the estimate is not binding,
and the actual weight of the shipment
determines the charges or the estimate
does not cover unanticipated services at
delivery. AMSA states the customer is
often simply given an oral quotation
that HHG motor carriers subsequently
disavow.
AMSA believes requiring full written
disclosure in advance of the move could
prevent many disputes. If brokers
disclose at the outset of the transaction
all of the factors that could affect the
HHG motor carrier’s charges, customers
are less likely to claim surprise or that
they are the subject of a bait and switch
maneuver. Alternatively, AMSA
believes that if the broker does not
disclose to the customer that actual
charges may differ from the quote, and
the reasons why, the HHG motor carrier
should not be authorized to collect a
higher amount.
Suggested paragraph (i) would
require full disclosure of the terms
governing deposits and forfeiture
requirements before payment of a
deposit. A frequent complaint AMSA
hears from consumers involves deposits
required to secure broker service.
Presently, AMSA states, there is no
prohibition against requiring a deposit.
Inasmuch as an Internet customer can
disappear as readily as an unscrupulous

PO 00000

Frm 00042

Fmt 4702

Sfmt 4702

76667

broker, AMSA believes it may be
prudent to permit a deposit from a
customer to secure the transportation
service. By the same token, AMSA states
if the customer cancels the request for
service before the move, the deposit
could be returned in varying amounts,
depending upon how close or far in
advance the customer provides notice of
cancellation. In any case, AMSA
believes brokers should disclose the
terms governing deposits and forfeitures
before a deposit can be demanded.
Suggested paragraph (j) would require
the HHG broker to advise the consumer/
shipper about the existence of its surety
bond or trust fund agreement. Due to the
nature of the broker’s business, AMSA
believes unscrupulous brokers are able
to ‘‘close shop’’ and disappear, leaving
shippers and HHG motor carriers
without any recourse. Accordingly, we
require brokers to have a bond or trust
agreement as a protective measure for
shippers and carriers in such an event.
See Property Broker Security For
Protection of Public, 4 I.C.C. 2nd 358
(1988). The AMSA suggested regulation
would require HHG brokers to disclose
the existence of the bond or trust
agreement, so the consumer is aware
there is the potential for recourse.
Suggested paragraph (k) would
require HHG brokers to identify and
disclose to individual shippers AMSA’s
suggested regulations. AMSA states
many consumers are unaware of their
rights and the responsibilities of service
providers prescribed by us. AMSA
believes this requirement would serve to
make consumers aware of these rights
and responsibilities.
Suggested paragraph (l) would
require HHG brokers to report violations
of regulations by HHG motor carriers to
us. AMSA believes this would enhance
enforcement of our regulations. Some
consumers, subjected to unlawful
practices by HHG motor carriers failing
to comply with, or who violate existing
HHG regulations under 49 CFR part 375,
do not know where or to whom such
violations should be reported. Since
brokers are typically the only
independent point of contact a
consumer may have with the service
provider, AMSA believes it is
appropriate to require the broker to
report violations to us in an effort to
improve the remedies available to
consumers.
Suggested paragraph (m) would
prohibit misleading and deceptive trade
practices. Before the ICC revised the
regulations in 1980, the broker
regulations imposed an affirmative duty
on brokers to fairly protect the interests
of their shipper customers and
prohibited misrepresentations and false

E:\FR\FM\22DEP1.SGM

22DEP1

76668

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules

promises. Former 49 CFR 1045.10
(1978). Given the practices AMSA
described in its petition and the
Congressional directive to protect
shippers in 49 U.S.C. 13904,
Registration of Brokers, AMSA suggests
reviving the former prohibition against
misleading and deceptive practices.
Further AMSA discussion and the
text of its suggested regulations are
contained in its petition, which is
publicly available in docket FMCSA–
2004–17008.
AMSA Petition Granted
On December 11, 2003, we granted
the AMSA petition and initiated this
ANPRM to help determine whether the
public, HHG brokers, motor carriers,
and freight forwarders, as well as
Federal and State regulatory agencies,
believe there is sufficient need to amend
49 CFR part 371, as AMSA requested.
Scope and Necessity of Separate
Regulations
We request public comments
regarding the need for any further
regulatory changes, requirements, or
non-regulatory alternatives specifically
for HHG brokers. We would also like
specific comments on what effects such
regulatory or non-regulatory alternatives
may have in deterring illegal HHG
broker and motor carrier activities.
We request information on the
economic structure of the property
broker entities which would be subject
to potential actions we might consider
and may initiate in a subsequent
regulatory action, and the effect that
such potential actions may have on
small property brokers. We also ask
whether current surety bond or trust
fund requirements are sufficient to
ensure a minimum level of financial
responsibility.
Penalties
Sanctions and penalties for HHG
brokers are addressed in 49 U.S.C.
chapter 149—Civil and Criminal
Penalties (sections 14901 through
14914), and 49 CFR part 386—Rules of
Practice for Motor Carrier, Broker,
Freight Forwarder, and Hazardous
Materials Proceedings. Paragraph (c) of
49 U.S.C. 14901 requires that when we
are determining and negotiating the
amount of a civil penalty concerning the
transportation of HHG, we are to take
into account the degree of culpability,
any history of such prior conduct, the
degree of harm to shippers, ability to
pay, the effect on ability to do business,
whether the shipper has been
adequately compensated before
institution of the proceeding, and such
other matters as fairness may require.

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

Section 14901(d) requires a motor
carrier or freight forwarder of household
goods, or their receiver or trustee, that
does not comply with any regulation
relating to the protection of individual
shippers, to be liable for a minimum
penalty of $1,100 per violation.2 No
comparable sanction or penalty relating
to the protection of individual shippers,
however, exists currently in 49 U.S.C.
Chapter 149 for brokers or HHG brokers.
We seek comment on the enforcement
strategies we should consider for any
potential actions we may initiate in
response to this ANPRM. We also seek
comment on the range of appropriate
sanctions or penalties we should
consider for HHG brokers, alternative
remedial actions we may consider, and
whether we should seek Congressional
action to extend 49 U.S.C. 14901(d) to
property brokers, including HHG
brokers.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined this ANPRM is
a significant regulatory action within
the meaning of Executive Order 12866
and the Department of Transportation
regulatory policies and procedures (44
FR 11034, February 26, 1979). We are
considering setting up a new regulatory
program for HHG brokers engaged in
interstate and foreign commerce that
could have an affect on other
governments, particularly States.
However, we are not yet in a position
to analyze fully any potential actions we
may initiate in response to this ANPRM,
as there is some uncertainty as to the
size of the specific HHG broker
population that we may affect, given
that the agency has not developed any
specific set of alternatives.
There are approximately 535 active
HHG brokers currently registered in the
FMCSA Licensing and Insurance (L&I)
database http://li-public.fmcsa.dot.gov/.
There are also 1,087 HHG brokers
included in the L&I database that are
listed either as inactive (i.e., they have
2 The Debt Collection Improvement Act of 1996
[Pub. L. 104–134, Title III, Chapter 10, Sec. 31001,
par. (s), 110 Stat. 1321–373] amended the Federal
Civil Penalties Inflation Adjustment Act of 1990
[Pub. L. 101–410, October 5, 1990, 104 Stat. 890)].
We must adjust for inflation ‘‘each civil monetary
penalty provided by law’’ within our jurisdiction
after having published the regulation in the Federal
Register. The last time we made this adjustment for
49 U.S.C. Chapter 149 was on March 31, 2003 (68
FR 15383). Pursuant to that authority and this
Federal Register, the inflation-adjusted civil
penalties listed in paragraphs (a) through (g) of
Appendix B to 49 CFR part 386 supersede the
corresponding civil penalty amounts listed in 49
U.S.C. chapter 149 (14901 through 14914).

PO 00000

Frm 00043

Fmt 4702

Sfmt 4702

allowed their authority to lapse) or had
their applications dismissed by FMCSA
for some reason. It is unclear whether
some portion of these 1,087 inactive or
dismissed HHG brokers may still be
operating illegally in some capacity
within the HHG broker industry, and
would thus be affected by any potential
actions we may initiate in response to
this ANPRM. Additionally, we believe it
is also logical to assume that there may
be some HHG brokers operating illegally
who have never registered with FMCSA.
They of course would also be affected
by any potential actions we may initiate.
As the AMSA petition notes, there are
‘‘no fewer than several hundred
websites offering to perform, arrange, or
manage moving services in one form or
another on behalf of consumers,’’ and
presumably some portion of these
entities have never registered with
FMCSA and would therefore not appear
in the above estimates of active and
inactive/dismissed HHG brokers
engaged in interstate or foreign
commerce. Regardless, our initial
research indicates that the population of
HHG brokers potentially affected by any
actions we may initiate is most likely
less than 2,000 entities. However, to be
sure, we are asking for comments from
the public on our initial HHG broker
population estimate as part of this
ANPRM.
FMCSA receives approximately 4,000
to 6,000 HHG consumer complaints
annually. We receive approximately 50
complaints that would be classified as
hostage loads per week. While these
estimates include complaints against
HHG motor carriers, the FMCSA Offices
of Communications and Household
Goods Enforcement believe the majority
of these consumer complaints are
related to HHG brokers.
With regard to the economic impact
on the HHG broker population, we do
not anticipate that any potential action
we may initiate would have a significant
impact on the industry for two reasons.
First, as noted above, we believe the
total number of entities potentially
affected is probably low. Secondly,
while we have yet to recommend any
specific sets of alternatives (without
which we cannot conduct an economic
evaluation), most appear to have a
modest economic impact, in that they
require greater disclosure to consumers
or strengthen the opportunities for
redress by the consumer. For instance,
the AMSA petition recommends
regulatory amendments to:
• Specifically name and include HHG
brokers in 49 CFR part 371;
• Require an HHG broker to identify
itself as an HHG broker, provide its
location, and telephone number;

E:\FR\FM\22DEP1.SGM

22DEP1

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules
• Require an HHG broker to provide
consumers shipping HHG with 49 CFR
part 375, Appendix A, the pamphlet
‘‘Your Rights and Responsibilities When
You Move;’’
• Require an HHG broker to disclose
estimates fully in writing in advance of
an interstate or foreign HHG shipment;
• Require an HHG broker to refund
consumer deposits, if the consumer
cancels the interstate or foreign HHG
shipment;
• Require an HHG broker to advise
the consumer about the existence of the
HHG broker’s surety bond/trust fund
agreement; and
• Require an HHG broker to report
illegal operations of HHG motor carriers
to FMCSA.
However, because of the uncertainties
noted above, we seek specific comment
on the costs and benefits to the public
and the impact potential alternatives
would create on State governments and
others.
Before initiating an analysis, we must
first determine whether there exists a
significant failure or failings by HHG
brokers to deal fairly and equitably with
consumers. In particular, our analysis
must distinguish actual failures from
potential failures that can be resolved by
non-regulatory means. If we find a
significant failure by HHG brokers to
deal fairly and equitably with
consumers, our analysis must show how
various alternatives will address the
specified failures.
Appropriateness of Alternatives to
Federal Regulation
Even if comments in this proceeding
confirm the HHG broker activities
alleged in AMSA’s petition, there may
be no need for our regulatory
intervention, if other means of
addressing the HHG broker industry
would adequately resolve the problem.
We would like to know whether we
should consider legislative measures
that use economic incentives, such as
changes in surety and trust fund
provisions.
Another important factor to consider
in assessing the appropriateness of a
Federal regulation is whether State or
local regulation of HHG brokers may be
an option. In this case, AMSA has stated
Florida-based brokers are its largest
problem. Where our regulations appear
appropriate, our analysis will need to
attempt to determine whether the
burdens on interstate and foreign
commerce arising from different State
and local regulations, including the
compliance costs imposed on national
and international firms, are greater than
the potential advantages of uniform
application.

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

We seek comments on these issues for
our analysis of a possible notice of
proposed rulemaking.
Regulatory Flexibility ACT
The Regulatory Flexibility Act (5
U.S.C. 601–612), as amended by the
Small Business Regulatory Enforcement
and Fairness Act (Pub. L. 104–121),
(RFA) requires Federal agencies to
analyze the impact of regulatory
alternatives on small entities, unless we
certify that a regulatory alternative will
not have a significant economic impact
on a substantial number of small
entities, and to consider non-regulatory
alternatives that could achieve our goal
while minimizing the burden on small
entities.
We are not yet in a position to analyze
fully any potential actions we may
initiate in response to this ANPRM. We
need specific information about which
industry classification designation is
appropriate for property brokers under
the Office of Management and Budget’s
(OMB) North American Industry
Classification System (NAICS)3 for the
United States. We use the NAICS to
analyze small entity impacts in
accordance with the RFA. Some of the
questions at the end of this ANPRM
relate directly to the RFA and our need
for NAICS information to assist us in
properly analyzing small property
broker entity impacts.
We believe property brokers of HHG
would classify and identify themselves
generally under the NAICS code 488510
Freight Transportation Arrangement.
The OMB description for 488510 is
‘‘Shipping agents, Customs brokers,
Freight forwarding, Marine shipping
agency, Shipping agents (freight
forwarding)’’ as seen at: http://
www.census.gov/epcd/naics02/
naicod02.htm and http://
www.census.gov/epcd/naics02/def/
NDEF488.HTM#N4885. We request
HHG brokers provide information on the
NAICS code they believe best fits their
operation.
The Statistics of U.S. Business (SUSB)
for 2001 estimates that 11,716 firms
engage primarily in freight
transportation arrangement. See
‘‘Freight transportation arrangement
NAICS 4885’’ on page 14 of ‘‘Employer
3 OMB published the NAICS on April 9, 1997 (62
FR 17288) and an amendment on January 16, 2001
(66 FR 3826). NAICS is the North American
international system for classifying establishments
(individual business locations) by type of economic
activity in Canada, Mexico, and the United States.
Its purposes are: (1) To facilitate the collection,
tabulation, presentation, and analysis of data
relating to establishments, and (2) to promote
uniformity and comparability in the presentation
and analysis of statistical data describing the North
American economy.

PO 00000

Frm 00044

Fmt 4702

Sfmt 4702

76669

Firms, and Employment by Employment
Size of Firm by NAICS Codes, 2001’’ at:
http://www.sba.gov/advo/stats/
us_01_n6.pdf. The U.S. Census Bureau
provides the SUSB with data on
employer firm size by NAICS code to
the Small Business Administration. See
http://www.sba.gov/advo/stats/
data.html. As we stated above, we
believe HHG brokers would classify
themselves as freight transportation
arrangers, though we are asking for
comment on this assumption.
One challenge facing us is identifying
HHG brokers that should be registered
with us, but are not. Another challenge
is estimating the benefits to consumers
from potential alternatives we might
consider in response to this ANPRM.
Although our Offices of
Communications and Household Goods
Enforcement believe a majority of our
consumer complaints are related to
HHG brokers, our HHG complaint
database has very limited information
on the exact nature of complaints
received. Thus, it is difficult to
determine what percentage of
complaints, including complaints that
are filed with our state divisions, could
be averted by potential actions we may
initiate.
We request comments from the public
on how potential alternatives may
impact HHG brokers. This information
would represent a major input to
estimating the costs of any potential
alternatives. We also specifically request
comments on the benefits of potential
alternatives to prevent harm to those
consumers who might otherwise suffer
negative economic or other
consequences, absent such alternative
solutions. In addition, we ask entities
and associations of small entities to
identify their gross revenues.
Executive Order 13132 (Federalism)
We are not yet in a position to analyze
fully any potential actions in
accordance with the principles and
criteria contained in Executive Order
13132, dated August 4, 1999 (64 FR
43255, August 10, 1999). As we have
said earlier in this ANPRM, we and our
predecessor agencies have regulated the
brokering, arranging, and forwarding of
property in interstate or foreign
commerce, including the transportation
of HHG, since 1949. We believe these
issues are national in scope. Congress
transferred the property broker
regulations to DOT in the ICCTA. Title
49 U.S.C. 13904 confers authority on the
Secretary of Transportation to register
brokers and ‘‘provide for the protection
of shippers by motor vehicle.’’ The
Secretary subsequently delegated this

E:\FR\FM\22DEP1.SGM

22DEP1

76670

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules

authority to FMCSA under 49 CFR
1.73(a)(5).
The primary federalism issue is
whether 49 U.S.C. 13904 preempts State
and local attempts to regulate the
business practices of interstate HHG
brokers. Although 49 U.S.C. 14501(b)(1)
prohibits a State, a political subdivision
of a State, an intrastate agency, or other
political agency of two or more States to
enact or enforce any law, rule,
regulation, standard, or other provision
having the force and effect of law
relating to intrastate rates, routes, or
services of a broker, there is no express
preemption regarding interstate broker
operations.
The Carmack Amendment (June 29,
1906, ch. 3591, § 7 (pars. 11, 12), 34
Stat. 595) to the Interstate Commerce
Act (Feb. 4, 1887, ch. 104, 24 Stat. 379)
as amended, codified at 49 U.S.C.
14706, imposes a uniform system of
motor carrier and freight forwarder
liability for interstate and foreign
shipments of property. Congress
designed Carmack to eliminate
uncertainty resulting from potentially
conflicting State laws. Federal and State
courts have consistently held that
Carmack preempts a broad range of
State consumer protection laws
potentially applicable to HHG motor
carriers and freight forwarders engaged
in interstate or foreign commerce.
The Carmack Amendment by its terms
applies to ‘‘carriers,’’ ‘‘motor carriers,’’
and ‘‘freight forwarders.’’ Therefore, we
do not believe Carmack would apply to
typical broker operations, especially
since brokers seldom take possession of
property. We invite comment regarding
whether potential actions we may
initiate in response to this ANPRM
would preempt many, if not all, State
regulations that directly, or indirectly
regulate the brokerage of transportation
of HHG subject to Federal jurisdiction.
Consultations With State and Local
Officials
We specifically request comment from
State and local officials on any
federalism issues. In particular, we
request comment on whether we should
seek legislative changes to allow States
to assist FMCSA in enforcing
regulations applicable to HHG brokers
engaged in interstate or foreign
commerce.
Because AMSA has reported the most
problems with brokers allegedly doing
business in Florida, we would
specifically like to hear from State
officials in Florida, including the
Florida Attorney General.

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

Unfunded Mandates Reform ACT of
1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4; 2 U.S.C. 1532)
requires each agency to assess the
effects of its regulatory actions on State,
local, and tribal governments and the
private sector. Any agency promulgating
a final rule likely to result in a Federal
mandate requiring expenditures by a
State, local, or tribal government, or by
the private sector of $100 million or
more (adjusted for inflation) in any one
year, must prepare a written statement
incorporating various assessments,
estimates, and descriptions that are
delineated in the Act. We are not yet in
a position to analyze fully any potential
actions we may initiate and that may
meet the requirements of the Unfunded
Mandates Reform Act. We seek specific
comments whether such impacts are
likely for any regulatory or nonregulatory alternatives we might
consider in our deliberations.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501–3520), a Federal
agency must obtain approval from OMB
for each collection of information it
conducts, sponsors, or requires through
regulations.
As referenced above, part 371 requires
a broker to keep a record of each
transaction and to retain the records for
a period of three years. Each party to a
brokered transaction has the right to
review the record of the transaction
applicable to them. Brokers may keep
master lists of consignors and the
address and registration number of the
motor carrier, rather than repeating this
information for each transaction. Under
section 371.3, each transaction record
must show:
(1) The name and address of the
consignor;
(2) The name, address, and
registration number of the originating
motor carrier;
(3) The bill of lading or freight bill
number;
(4) The amount of compensation
received by the broker for the brokerage
service performed and the name of the
payer;
(5) A description of any nonbrokerage service performed in
connection with each shipment or other
activity, the amount of compensation
received for the service, and the name
of the payer; and
(6) The amount of any freight charges
collected by the broker and the date of
payment to the motor carrier.
Each broker who engages in any other
business, must maintain accounts so

PO 00000

Frm 00045

Fmt 4702

Sfmt 4702

that the revenues and expenses relating
to the brokerage portion of its business
are segregated from its other activities.
Expenses that are common must be
allocated on an equitable basis;
however, the broker must be prepared to
explain the basis for the allocation.
The AMSA suggested alternative
would also require an HHG broker to:
(1) Identify itself, the capacity in
which it holds itself out, and reveal its
location and telephone number;
(2) Use only FMCSA-registered motor
carriers for HHG movements placed in
interstate or foreign commerce;
(3) Provide to shippers the pamphlet
‘‘Your Rights and Responsibilities When
You Move;’
(4) Explain motor carrier liability for
loss and damage;
(5) Advise of the availability of
arbitration;
(6) Require full written disclosure in
advance regarding shipment charges;
(7) Require full disclosure of the terms
governing deposits and forfeiture
requirements before payment of a
deposit;
(8) Advise the consumer about the
existence of its surety bond or trust fund
agreement;
(9) Direct the consumer to appropriate
rights and responsibility assistance; and
(10) Report violations of regulations
by HHG motor carriers to us.
We are not yet in a position to analyze
fully any potential action we may
initiate that may fall within the scope of
the Paperwork Reduction Act. If we
initiate a potential regulatory alternative
in the future incorporating these or
other relevant provisions, we would
seek approval of any collection of
information requirements to generate,
maintain, retain, disclose, and provide
information to, or for, the agency under
49 CFR part 371. The information
collected would assist individual HHG
consumers and HHG motor carriers in
their commercial dealings with HHG
brokers. The collection of information
would be used by prospective HHG
consumers to make informed decisions
about contracts and services to be
ordered, executed, and settled within
the HHG motor carrier industry.
When the ICCTA transferred the
current regulations to DOT, OMB
assigned no control number to cover the
information collection transfer of the six
items in section 371.3. We seek specific
comments from property brokers and
HHG brokers concerning what
information collection burdens they
currently experience to comply with
part 371, and what burdens they would
anticipate under AMSA’s suggested
alternative and other alternatives we

E:\FR\FM\22DEP1.SGM

22DEP1

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules
might consider for a possible
subsequent regulatory action.
National Environmental Policy Act
We are not yet in a position to analyze
fully any potential actions under the
requirements of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and our
environmental procedures Order 5610.1
(issued on March 1, 2004, 69 FR 9680).
We believe potential actions we may
initiate in response to this ANPRM may
be categorically excluded (CE) from
further environmental documentation
under Appendix 2 6.k. of Order 5610.1,
which contains a categorical exclusion
for regulations for all brokers of
transportation by motor vehicle. In
addition, we believe potential actions
we may initiate would not involve
extraordinary circumstances that would
affect the quality of the environment.
We are not yet in a position to analyze
fully any potential actions under the
requirements of the Clean Air Act, as
amended (CAA) section 176(c), (42
U.S.C. 7401 et seq.) and implementing
regulations promulgated by the
Environmental Protection Agency. We
believe potential actions we may initiate
would be exempt from the CAA’s
general conformity requirement since
they would involve policy development
and civil enforcement activities, such as
investigations, inspections,
examinations, and the training of law
enforcement personnel. See 40 CFR
93.153(c)(2). We anticipate potential
actions we may initiate in response to
this ANPRM would not result in any
emissions increase or result in
emissions that are above the general
conformity rule’s de minimis emission
threshold levels because the AMSA
suggested alternative or other potential
actions would merely establish
standards for arrangements between
HHG brokers and shippers.
We seek comment on the effect on the
environment of the AMSA suggested
alternative and other potential action
alternatives.
Executive Order 12630 (Taking of
Private Property)
We are not yet in a position to analyze
fully any potential actions that may
constitute a taking of private property or
otherwise have taking implications
under Executive Order 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights. We seek comment on whether
potential actions we may initiate in
response to this ANPRM would
constitute a taking of private property or
otherwise have implications under
Executive Order 12630.

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

Executive Order 12372
(Intergovernmental Review)
We are not yet in a position to analyze
fully any potential actions that may
require intergovernmental consultation
on Federal programs and activities
under Executive Order 12372, as
amended. We seek comment on whether
potential actions we may initiate in
response to this ANPRM would require
any intergovernmental consultation on
Federal programs and activities under
Executive Order 12372, as amended.
Executive Order 13211 (Energy Supply,
Distribution, or Use)
We are not yet in a position to analyze
fully any potential actions that may
affect energy supply, distribution, or use
under Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We seek comment
on whether potential actions we may
initiate in response to this ANPRM
would affect any regulatory or nonregulatory alternatives that may
significantly affect energy supply,
distribution, or use.
Executive Order 12988 (Civil Justice
Reform)
We are not yet in a position to analyze
fully any potential actions that may
meet applicable standards in sections
3(a) and 3(b)(2) of Executive Order
12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and
reduce burden. We seek comment on
whether potential actions we may
initiate in response to this ANPRM
would meet the standards in Executive
Order 12988.
List of Subjects in 49 CFR Part 371
Brokers, Motor carriers, Reporting and
recordkeeping requirements.
Questions
We would like the public to answer
the following questions:
General
1. Is the statement/description of the
problem accurate? Please explain.
2. What non-regulatory actions could
address the problem?
3. What State or local actions could
address the problem without our
Federal regulatory action?
4. Is the problem of shipper abuse by
HHG brokers serious enough to expedite
the rulemaking process in some way?
Please explain.
5. Are there other consumer
protection models being utilized by
other Federal or State agencies that we
should study and/or emulate? Please
explain.

PO 00000

Frm 00046

Fmt 4702

Sfmt 4702

76671

Statistics for Cost-Benefit Analysis
6(a). How many entities in the United
States sell, offer for sale, negotiate for,
or hold themselves out by solicitation,
advertisement, or otherwise as selling,
providing, or arranging for, HHG
transportation by motor carrier in
interstate or foreign commerce for
compensation, and are not an HHG
motor carrier or HHG freight forwarder?
6(b). How many entities outside the
United States sell, offer for sale,
negotiate for, or hold themselves out by
solicitation, advertisement, or otherwise
as selling, providing, or arranging for,
HHG transportation by motor carrier in
the United States in interstate or foreign
commerce for compensation, and are
not an HHG motor carrier or HHG
freight forwarder?
7. If you are a property broker of HHG,
under what North American Industry
Classification System code at http://
www.census.gov/epcd/naics02/
naicod02.htm would you classify
yourself?
8. If you are a property broker of HHG,
what was your gross revenue for your
most recent fiscal year?
Information Collection Burdens
9. If you are a property broker, what
are your current time and dollar
burdens to generate, maintain, retain,
disclose, and provide information to us
or the public:
9(a). For each record of every
transaction?
9(b). For each record for a period of
three years?
9(c). To review each record of each
transaction applicable to the parties of
each transaction?
9(d). About your HHG broker
operation advertising?
9(e). About how you maintain your
accounts so that the public may see the
revenues and expenses relating to the
brokerage portion of your business are
segregated from your other activities?
9(f). For allocating your expenses that
are common on an equitable basis?
10. If you are a property broker, do
you keep master lists of consignors and
the address and registration number of
the motor carriers, rather than repeating
this information for each transaction?
11. If you are a property broker of
HHG, what do you estimate your
anticipated time and dollar burdens
would be to generate, maintain, retain,
and provide:
11(a). Full written disclosure in
advance regarding your shipment
charges?
11(b). Full disclosure of your terms
governing deposits and forfeiture
requirements before you demand
payment of a deposit?

E:\FR\FM\22DEP1.SGM

22DEP1

76672

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules

11(c). Information advising consumers
about existence of your surety bond or
trust fund agreement?
11(d). Information directly to
consumers about their appropriate
rights and responsibility assistance as
requested by AMSA?
11(e). Information to us about
violations of our regulations by HHG
motor carriers, as requested by AMSA?
11(f). Information to us and the public
to ensure you, your employees, and
your agents do not provide misleading
or deceptive information?
Federalism Implications
12. Does 49 U.S.C. 13904 preempt
States from enforcing consumer
protection laws potentially applicable to
property brokers?
13. Have current interpretations of the
Carmack Amendment frustrated the
ability of States to use their consumer
protection statutes in cases of HHG
broker abuse? If so, will the AMSA
suggested alternative or would a
different alternative be helpful to your
State? Is something else needed?
14. What role, if any, may State or
local enforcement agencies and
attorneys general provide in helping
enforce potential action alternatives?
15. Do you believe only FMCSA
should enforce regulations or other
alternatives on HHG brokers?
16. Do you believe States and local
government agencies should be
involved in enforcing regulations or
other alternatives on HHG brokers?
HHG Carrier Related Pamphlet
17. Should HHG brokers be required
to provide consumers with the 49 CFR
part 375, Appendix A, ‘‘Your Rights and
Responsibilities When You Move’’
pamphlet?
New Regulations Specifically for HHG
Brokers
18. Should HHG brokers be required
to provide refunds of consumer deposits
if the consumer cancels the shipment?
Why or why not?
19. Should HHG brokers advise the
consumer about the existence of the
HHG broker’s surety bond or trust fund?
Please explain.
20. Should HHG brokers be required
to report to us illegal operations of HHG
motor carriers? Please explain.
Economic Implications
21. What are the economic issues and
impacts of the AMSA suggested
alternative and other alternatives that
we should evaluate?

VerDate jul<14>2003

17:55 Dec 21, 2004

Jkt 205001

Regulatory Flexibility/Small Business
Issues

responsibility be placed upon the HHG
broker? Please explain.

22. What are the small entity
economic issues and impacts of the
AMSA suggested alternative and other
alternatives that we should evaluate?

HHG Motor Carrier Issues

Unfunded Mandates
23. What are the potential unfunded
mandates that may be involved in the
AMSA suggested alternative and other
alternatives?
Environmental Issues
24. What are the potential effects of
the AMSA suggested alternative and
other alternatives on the quality of the
environment that we should consider in
any potential NEPA analysis?
Private Property Taking Issues
25. Would the AMSA suggested
alternative and other alternatives
constitute a taking of private property or
otherwise have taking implications
under Executive Order 12630? Please
explain.
Intergovernmental Consultation Issues
26. Would the AMSA suggested
alternative and other alternatives
require any intergovernmental
consultations on other Federal programs
and activities under Executive Order
12372? Please explain.
Energy Supply Issues
27. Would the AMSA suggested
alternative and other alternatives affect
any actions that significantly affect
energy supply, distribution, or use
under Executive Order 13211? Please
explain.
Financial Responsibility Issues
28. Should HHG brokers be subject to
more stringent surety bond/trust fund
requirements than apply to brokers of
general freight? If so:
28(a). Should the surety bond/trust
fund requirements be increased?
28(b). What should the surety bond/
trust fund requirement amount be to
deter sufficiently non-compliant
behavior and protect the public? What
would be the impact of this requirement
on small businesses?
Contract Issues
29. Should HHG brokers be required
to enter into specific contractual
agreements for all motor carriers for
which they provide estimates? Please
explain.
30. The current § 375.409 places the
responsibility of complying with the
estimating requirements on the HHG
motor carrier. Should the same

PO 00000

Frm 00047

Fmt 4702

Sfmt 4702

31. How will the AMSA suggested
alternative and other alternatives affect
HHG motor carriers?
31(a). What additional paperwork
burdens could reasonably be seen?
31(b). How important are HHG
brokers and freight forwarders to HHG
motor carrier business operations?
HHG Freight Forwarder Issues
32(a). Are there any HHG freight
forwarder problems similar to the
problems reported by AMSA concerning
HHG brokers?
32(b). Should a potential action
FMCSA may initiate consider regulatory
requirements for HHG freight forwarder
operations?
HHG Motor Carrier Business Protection
Issues
33. How and to what extent should
we protect HHG motor carriers from
unscrupulous HHG broker activities?
Enforcement Strategies
34. Given the current e-business
environment, what enforcement
strategies should we use to protect HHG
shippers from unscrupulous HHG
broker activities?
35. What should be the range of
appropriate sanctions or penalties for
violating potential actions FMCSA may
initiate?
36. Paragraph (d) of 49 U.S.C. 14901
requires a motor carrier or freight
forwarder of household goods, or their
receiver or trustee, that does not comply
with any regulation relating to the
protection of individual shippers, to be
liable for a minimum penalty of $1,100
per violation, as adjusted for inflation.
Should we seek Congressional action to
extend applicability of 49 U.S.C.
14901(d) to HHG brokers? Why or why
not?
Issued on: December 16, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04–27933 Filed 12–21–04; 8:45 am]
BILLING CODE 4910–EX–P

E:\FR\FM\22DEP1.SGM

22DEP1