[Federal Register Volume 88, Number 45 (Wednesday, March 8, 2023)]
[Proposed Rules]
[Pages 14322-14323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04717]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 371

[Docket No. FMCSA-2022-0134]


Definitions of Broker and Bona Fide Agents

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

ACTION: Notification of interim guidance; reopening of comment period.

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SUMMARY: FMCSA is reopening the comment period for its interim 
guidance, Definitions of Broker and Bona Fide Agents. The interim 
guidance informs the public and regulated entities about FMCSA's 
interpretation of the definitions of broker and bona fide agents as it 
relates to all brokers of transportation by commercial motor vehicle. 
FMCSA is taking this action to better define the terms in response to a 
mandate in the Infrastructure Investment and Jobs Act (IIJA). After 
consideration of public comments received, FMCSA provided clarification 
on its interpretation of the definitions of broker and bona fide 
agents, in addition to meeting other criteria required by the IIJA. 
While the interim guidance was effective immediately upon publication, 
FMCSA sought comments to the interim guidance and will issue final 
guidance by June 16, 2023. FMCSA is reopening the comment period in 
anticipation of hosting a public listening session allowing comments on 
this topic. FMCSA will host the session at 10 a.m. on March 31, 2023, 
in Louisville, KY, and concurrently with the Mid America Trucking Show 
(MATS). Anyone wishing to attend can register at: https://www.eventbrite.com/e/fmcsa-session-2-broker-regulatory-session-tickets-549535173497. In addition, a transcript of the public listening session 
will be placed in the guidance docket.

DATES: The comment period for the interim guidance published on 
November 16, 2022, at 87 FR 68635, will be reopened on March 31, 2023. 
Comments must be received on or before April 6, 2023.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0134 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0134/document. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey L. Secrist, Chief, 
Registration, Licensing, and Insurance Division, Office of 
Registration, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001; (202) 385-2367; [email protected]. If you have questions on 
viewing or submitting material to the docket, call Dockets Operations 
at (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number FMCSA-
2022-0134 for this notice, indicate the specific section of the 
guidance to which your 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 means. FMCSA recommends that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so FMCSA can contact you if there are questions regarding your 
submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0134/document, click on this notification, click 
``Comment,'' and type your comment into the text box on the following 
screen.
    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.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the interim guidance contain commercial 
or financial information that is customarily treated as private, that 
you actually treat as private, it is important that you clearly 
designate the submitted comments as CBI. Please mark each page of your 
submission that constitutes CBI as ``PROPIN'' to indicate it contains 
proprietary information. FMCSA will treat such marked submissions as 
confidential under the Freedom of Information Act, and they will not be 
placed in the public docket of the interim guidance. Submissions 
containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory 
Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001 or via email at [email protected]. 
At this time, you need not send a duplicate hardcopy of your electronic 
CBI submissions to FMCSA headquarters. Any comments FMCSA receives not 
specifically designated as CBI will be placed in the public docket for 
this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2022-0134/document and 
choose the document to review. To view comments, click this 
notification of interim guidance, then click ``Browse Comments.'' If 
you do not have access to the internet, you may view the docket online 
by visiting Dockets Operations in Room W12-140 on the ground floor of 
the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. To be sure someone is there to help you, please call (202) 
366-9317 or (202) 366-9826 before visiting Dockets Operations.

C. Privacy Act

    In accordance with its regulatory procedures and policies, DOT 
solicits

[[Page 14323]]

comments from the public to better inform its regulatory 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 (Federal Docket Management System 
(FDMS)), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments 
are searchable by the name of the submitter.

II. Background

    The November 16, 2022, notification of interim guidance (87 FR 
68635) requested comment on FMCSA's interpretation of the term broker, 
which is defined in 49 CFR 371.2(a) as a ``person who, for 
compensation, arranges, or offers to arrange, the transportation of 
property by an authorized motor carrier. Motor carriers, or persons who 
are employees or bona fide agents of carriers, are not brokers within 
the meaning of this section when they arrange or offer to arrange the 
transportation of shipments which they are authorized to transport and 
which they have accepted and legally bound themselves to transport.''
    The interim guidance also requested comment on FMCSA's 
interpretation of the term bona fide agent, which is defined as 
``persons who are part of the normal organization of a motor carrier 
and perform duties under the carrier's directions pursuant to a 
preexisting agreement which provides for a continuing relationship, 
precluding the exercise of discretion on the part of the agent in 
allocating traffic between the carrier and others'' (49 CFR 371.2(b)).
    Section 23021 of the IIJA (Pub. L. 117-58, 135 Stat. 429) directed 
the Secretary (through FMCSA) to issue this guidance, taking into 
consideration the extent to which technology has changed the nature of 
freight brokerage, the role of bona fide agents, and other aspects of 
the freight transportation industry. Additionally, when issuing the 
guidance, Congress directed that FMCSA must, at a minimum: (1) examine 
the role of a dispatch service in the transportation industry; (2) 
examine the extent to which dispatch services could be considered 
brokers or bona fide agents; and (3) clarify the level of financial 
penalties for unauthorized brokerage activities under 49 U.S.C. 14916, 
applicable to a dispatch service (87 FR 68635).
    The comment period for the interim guidance closed on January 17, 
2023. However, FMCSA will host a public listening session on issues 
related to brokers on March 31, 2023, concurrent with the 2023 MATS 
conference. Therefore, FMCSA believes it is in the interest of the 
public to reopen the comment period so FMCSA may consider comments on 
the guidance made at the session and for a short period thereafter. 
Accordingly, FMCSA is reopening the comment period on the date of the 
session, March 31, 2023, and will accept additional comments until 
April 6, 2023.
    Issued under authority delegated in 49 CFR 1.87.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-04717 Filed 3-7-23; 8:45 am]
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