[Federal Register Volume 62, Number 18 (Tuesday, January 28, 1997)]
[Proposed Rules]
[Pages 4096-4101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1882]
[[Page 4095]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 373
General Jurisdiction Over Freight Forwarder Service; Proposed Rule
Federal Register / Vol. 62, No. 18 / Tuesday, January 28, 1997 /
Proposed Rules
[[Page 4096]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 373
[FHWA Docket No. MC-96-43]
RIN 2125-AE00
General Jurisdiction Over Freight Forwarder Service
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This NPRM proposes changes to existing regulations regarding
the issuance of bills of lading by freight forwarders and also gives
notice of the FHWA's general jurisdiction over all segments of the
freight forwarding industry (not just household goods freight
forwarders), in accordance with the ICC Termination Act of 1995
(ICCTA), Public Law 104-88, 109 Stat. 803. Before the ICCTA became
effective on January 1, 1996, the former Interstate Commerce Commission
(ICC) had both general and licensing jurisdiction over household goods
freight forwarders only, because the non-household goods segment of the
freight forwarding industry had been substantially deregulated in 1985.
The ICCTA abolished the ICC and gave the Secretary of Transportation
(Secretary) general jurisdiction over all freight forwarder service,
requiring freight forwarders to register with the Secretary to provide
the transportation or service they seek to provide. The Secretary has
delegated this authority over all freight forwarder service to the
FHWA. This NPRM proposes to amend 49 CFR 373.201, which governs the
issuance of bills of lading by household goods freight forwarders, by
expanding its coverage to include the non-household goods segment of
the freight forwarder industry.
DATES: Comments should be received no later than March 31, 1997.
ADDRESSES: Written, signed comments should be sent to: Docket Clerk,
Attn.: FHWA Docket No. MC-96-43, Federal Highway Administration,
Department of Transportation, Room 4232, 400 Seventh Street, SW.,
Washington, D.C. 20590. Persons who require acknowledgment of the
receipt of their comments must enclose a stamped, self-addressed
postcard. Comments may be reviewed at the above address from 8:30 a.m.
through 3:30 p.m. Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding rulemaking
and operational issues: Larry Minor, Office of Motor Carrier Research
and Standards, (202) 366-4012; and for information regarding legal
issues: Michael Falk, Office of the Chief Counsel, (202) 366-1384,
Federal Highway Administration, Department of Transportation, 400
Seventh Street, SW., Washington, D.C. 20590.
SUPPLEMENTARY INFORMATION: The FHWA has general jurisdiction over
freight forwarder service as mandated by Congress in section 103 of the
ICCTA. 49 U.S.C. 13531. The ICCTA abolished the Interstate Commerce
Commission (ICC), eliminated unnecessary ICC regulatory functions, and
transferred certain remaining functions to DOT. Prior to the ICC's
termination, however, it had general and licensing jurisdiction over
household goods freight forwarders only, pursuant to former 49 U.S.C.
10561 and 10923. The Surface Freight Forwarder Deregulation Act of
1986, Public Law 99-521, 100 Stat. 2993 (1986), enacted on October 22,
1986 (Deregulation Act) redefined and limited, for the most part, the
regulated forwarding industry to household goods freight forwarders.
The ICCTA, at 49 U.S.C. 13531, expands the jurisdiction of former
49 U.S.C. 10561 and gives the Secretary general jurisdiction over all
service that a freight forwarder undertakes or is authorized to
provide. The ICCTA also expands former 49 U.S.C. 10923 to require the
Secretary to register all freight forwarders for transportation or
service they seek to provide under 49 U.S.C. 13903. Under the ICCTA, at
49 U.S.C. 13901-13905, Congress established a registration system, to
replace the former ICC licensing system, requiring all for-hire motor
property and passenger carriers, property brokers, and freight
forwarders to register with the Secretary to provide such
transportation or service. Accordingly, these new registration
provisions of the ICCTA embrace both forwarders of non-household goods
and household goods.
The purpose of this document is to propose changes to existing
regulations to comport with statutory requirements, give notice of the
FHWA's general jurisdiction over all freight forwarders (not just
household goods freight forwarders), clarify the FHWA's jurisdiction
over freight forwarder service in other areas, and provide guidance to
freight forwarders about how to register with FHWA.
The only regulatory change proposed by FHWA in this document is the
revision of 49 CFR 373.201, entitled Bills of Lading for Freight
Forwarders, to include within its scope the non-household goods segment
of the freight forwarding industry. The proposed revision is consistent
with the FHWA's new statutory jurisdiction, as well as with the bill of
lading requirements imposed on all freight forwarders by 49 U.S.C.
14706(a)(2) and its predecessor provision 49 U.S.C. 11707(a). At this
time, no further amendments or changes are deemed necessary to the
former ICC regulations involving freight forwarders [aside from the
amendments that will be made in separate FHWA rulemaking proceedings
involving registration, insurance, and designation of process agent
requirements] to make them consistent with the provisions of the ICCTA.
Background
Currently, there are approximately 817 active surface freight
forwarders on file at the FHWA. The term ``freight forwarder'' means a
person holding itself out to the general public to provide
transportation of property for compensation and in the ordinary course
of its business--(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 a
carrier subject to jurisdiction under section 103 of the ICCTA, part B
of subtitle IV of title 49, U.S.C. The term, however, does not include
a person using transportation of an air carrier. 49 U.S.C. 13102(8). A
freight forwarder is also not a pipeline, rail, motor, or water
carrier.
Freight forwarders were initially regulated by the ICC in 1942, and
remained subject to virtually the same regulatory requirements until
1986. The ICC regulated surface freight forwarders in five major areas:
Entry, ratemaking, insurance and liability matters, ownership and
control, and Federal-State relations. Congress believed that these
regulatory constraints prevented freight forwarders from responding
efficiently and competitively to changing market conditions, especially
when their competitors and the underlying transportation modes they use
had been substantially deregulated. These concerns resulted in the
enactment of the Deregulation Act.
The Surface Freight Forwarder Deregulation Act of 1986
This legislation substantially deregulated the general commodities
segment of the surface freight
[[Page 4097]]
forwarding industry, but did not deregulate freight forwarders that
dealt with household goods. In 1986, the year the Deregulation Act was
passed, there were approximately 660 surface freight forwarders
operating in the United States (590 non-household goods freight
forwarders and 70 household goods freight forwarders).
Most of the regulatory constraints placed on general commodity
freight forwarders, such as ICC entry and rate regulation, antitrust
immunity for collective ratemaking activities, and the prohibition
against the ownership of a rail, motor, or water carrier were removed
by the Deregulation Act. The Deregulation Act also added a new
subsection (g) to former 49 U.S.C. 11501 (49 U.S.C. 14501 under the
ICCTA), that precluded a State from enacting or enforcing any law or
regulation relating to the interstate rates, routes, or services of any
general commodity freight forwarder.
The Deregulation Act retained Federal regulation over all surface
freight forwarders with respect to cargo liability and claims
settlement procedures. The provisions of the so-called Carmack
amendment at former 49 U.S.C. 11707(a) remained unchanged following the
Deregulation Act and applied to all freight forwarders to ensure that
they were responsible for any loss or damage to the cargo they handle.
Pursuant to the legislative action taken in the Deregulation Act,
the ICC instituted a rulemaking proceeding and made minor revisions in
the Code of Federal Regulations to exclude all freight forwarders,
except household goods freight forwarders, from the scope of most ICC
rules. Regulation of Household Goods Freight Forwarders Under the
Surface Freight Forwarder Deregulation Act of 1986, 3 I.C.C. 2d 162
(1986) (Ex Parte No. MC-184). Congress subsequently passed additional
legislation to further ease entry, rate, and tariff requirements on
motor carriers and household goods freight forwarders. Such legislation
included the Negotiated Rates Act of 1993 (Pub. L. 103-180, 107 Stat.
2044) enacted to handle the on-going undercharge crisis, and the
Trucking Industry Regulatory Reform Act of 1994 (TIRRA) (Pub. L. 103-
311, Title II, 108 Stat. 1683) which eliminated tariff filing
requirements for individually determined rates.
After the Deregulation Act's effective date of December 21, 1986,
non-household goods freight forwarders no longer had to apply for
licensing authority from the ICC. From 1987 to 1994, the ICC granted,
on the average, approximately 100 permits to household goods freight
forwarders during any given fiscal year. Prior to the ICC's termination
in 1995, the ICC regulated approximately 720 household goods freight
forwarders.
The ICC Termination Act of 1995
As noted above, 49 U.S.C. 13531 provides the Secretary with general
jurisdiction over freight forwarder service. Section 13531 is derived
from the provisions of former 49 U.S.C. 10561, which extended
jurisdiction to freight forwarders of household goods only. Section
13531 extends this jurisdiction to include all segments of the surface
freight forwarding industry.
Under the ICCTA, former 49 U.S.C. 10923, which authorized the ICC
to license household goods freight forwarders, was repealed and a new
provision, 49 U.S.C. 13903, was enacted requiring that all freight
forwarders, not just household goods freight forwarders, register with
the Secretary. Accordingly, the registration process is a prerequisite
under the ICCTA to operate as a freight forwarder. Registration will
require a showing that registrants are ``fit, willing, and able'' to
provide service, and meet insurance, safety fitness, and other
requirements. If a freight forwarder desires to operate as a carrier
for the entire move, the freight forwarder must also be registered as a
carrier. 49 U.S.C. 13902. Rules implementing the FHWA's freight
forwarder registration process, including the required insurance and
security needed under the ICCTA, will be promulgated in other
proceedings.
The legislative history indicates that these changes were made
because Congress believed that all freight forwarders act as carriers
in the assembling and delivery of shipments, and both forwarders of
non-household goods and household goods should be subject to the
registration requirements to ensure that they are fit to operate and
are insured. However, Congress was clear that, aside from the
registration requirement, it did not intend to impose additional
regulatory requirements on non-household goods freight forwarders. ICC
Sunset Act of 1995, S. Rep. No. 176, 104th Cong., 1st sess. 42 and 45
(1995).
Presumably this registration-only approach to the forwarding of
non-household goods was taken so as not to frustrate the congressional
goal of the Deregulation Act to reduce the regulatory burden on the
non-household goods segment of the motor carrier industry. By requiring
all freight forwarders to register, however, the FHWA will be permitted
to implement the new statutorily mandated registration system
consistently and fairly among all segments of the freight forwarding
industry.
Accordingly, the FHWA advises all non-household goods freight
forwarders, including those that previously held ICC authority mooted
by the Deregulation Act or those previously issued ICC authority
restricted to forwarding household goods, that they are required to
register with the FHWA in order to operate in interstate commerce.
Until the FHWA adopts regulations to replace the old licensing
system that was previously administered by the ICC, the FHWA has been
processing registration requests submitted by freight forwarders
generally under the licensing regulations at 49 CFR Part 365 and using
ICC application forms with minimal revisions to reflect the ICCTA's
jurisdictional changes. The FHWA's processing approach to the ICCTA's
new registration requirement is consistent with section 204 of the
ICCTA, Savings Provisions, which provides that all legal documents of
the ICC that were issued or granted by an official authorized to effect
such document shall continue in effect beyond the transfer of any
function from the ICC to DOT. See Continuation of the Effectiveness of
Interstate Commerce Commission Legal Documents, 61 FR 14372 (April 1,
1996), where the FHWA has adopted all ICC regulations, decisions, and
orders until such time as changes are warranted. Accordingly, the FHWA
will continue to process registration requests in the manner noted
above until the FHWA implements appropriate changes to conform with the
registration system established by Congress on January 1, 1996.
Persons requesting applications and seeking information about the
registration process should direct their inquiries to the Office of
Motor Carriers Licensing and Insurance Staff, Federal Highway
Administration, 400 Virginia Avenue SW., Suite 600, Washington, DC
20024, telephone (202) 358-7046.
Applications which include registration fees should be sent to
FHWA/OMC/HIA30, P.O. Box 100147, Atlanta, GA 30384-0147. Applications
sent via express mail only should be addressed to FHWA/OMC/HIA30, c/o
Nations Bank Wholesale, Lockbox # 100147, 6000 Feldwood Road, 3rd Floor
East, College Park, GA 30349, Attn: Linda Thomas. Ms. Thomas' telephone
number is 707-774-6443.
Proposed Amendments
As noted above, pursuant to congressional action taken in the
Deregulation Act of 1986, most of the prior regulatory constraints
placed on general commodity freight forwarders
[[Page 4098]]
were removed. In response to that legislation, the former ICC
instituted its Ex Parte No. MC-184 proceeding noted above, to adopt
ministerial revisions excluding all freight forwarders, except
household goods freight forwarders, from the scope of most of its
regulations. In that proceeding it was stated that 49 CFR Parts 1005
and 1081 [the latter now redesignated as 49 CFR Part 373, subpart B]
would not be revised to exclude general commodity freight forwarders
from their scope because:
They relate to some extent to the Carmack liability provisions
that are retained under 49 U.S.C. 11707 for all freight forwarders.
Part 1005 sets forth procedures that regulated carriers and freight
forwarders must follow in investigating cargo loss and damage
claims, although the actual settlement of claims by carriers under
these rules is voluntary. Part [373] sets forth requirements that
freight forwarders must follow in issuing bills of lading. The
Carmack amendment requires all carriers and freight forwarders to
issue bills of lading for property they receive, 49 U.S.C.
Sec. 11707(a)(1), and is central to its liability provisions.
Accordingly, we will separately consider what changes, if any,
should be made to Parts 1005 and [373] to comport with the
legislation in the near future. 3 I.C.C. 2d 162 at 166 (1986).
In 1989, the ICC issued a notice of proposed rulemaking in Ex Parte
No. 55 (Sub-No. 73), Practice and Procedure--Miscellaneous Amendments--
Revisions (not printed) served October 10, 1989, and published on
October 11, 1989, in the Federal Register (54 FR 41643) (Revisions).
Revisions to 24 parts of title 49, Code of Federal Regulations,
including Part 373, were proposed. The ICC stated that this action was
taken to streamline and update its regulations, and make the rules more
understandable and easier to use. The ICC also stated that because most
of the revisions involved editing to remove obsolete, unnecessary, or
redundant material from regulations, the required changes would not be
detailed in that proceeding.
The appendix to the notice of proposed rulemaking in Revisions
shows that the proposed change to Part 373, subpart B involved removing
non-household goods freight forwarders from its scope, thus requiring
only household goods freight forwarders to issue bills of lading.
Although some of the more significant changes were discussed in the
proposed rulemaking, that notice lacks any discussion of why the ICC
proposed amendments to Part 373, subpart B. The final rule is also
silent as to why non-household goods freight forwarders were excluded
from the scope of Part 373, subpart B. Practice and Procedure--Misc.
Amendments--Revisions, 6 I.C.C.2d 587 (1990).
Because Part 373, subpart B existed prior to the ICCTA, the FHWA is
now reviewing this provision in light of 49 U.S.C. 13531, which
provides the Secretary with general jurisdiction over all freight
forwarder service. As noted above, Part 373 relates to the Carmack
liability provisions that are retained under 49 U.S.C. 14706 of the
ICCTA (former 49 U.S.C. 11707). Section 11707 stated that all motor
carriers and freight forwarders subject to the Secretary's jurisdiction
shall issue a receipt or bill of lading for property received for
transportation. In spite of this requirement, following the ICC's 1990
decision in Revisions, the ICC's regulations governing the issuance of
receipts and bills of lading applied to motor carriers and household
goods freight forwarders, but not to non-household goods freight
forwarders. We cannot speculate as to why the ICC removed non-household
goods freight forwarders from 49 CFR 373.201 in apparent contradiction
to that agency's recognition, in its Ex Parte No. MC-184 proceeding,
that the Deregulation Act did not alter the Carmack amendment's
liability and bill of lading requirements with respect to freight
forwarders.
It is clear from the statutory provision at 49 U.S.C. 14706 that
freight forwarders are still required to issue receipts or bills of
lading for property they transport. A receipt and bill of lading are
not synonymous. A bill of lading is the more inclusive document. The
bill of lading is a receipt for the property, a contract of carriage,
and documentary evidence of title to the property.
As a receipt for the goods, the bill of lading recites the place
and date of shipment, describes the goods, their quantity, weight,
dimensions, identification marks, condition, etc., and sometimes their
quality and value. As a contract, the bill names the contracting
parties, specifies the rate or charge for transportation, and sets
forth the agreement and stipulations with respect to the limitations of
the carrier's common-law liability in the case of loss or injury to the
goods and other obligations assumed by the parties or to matters agreed
upon between them. That part of the bill which constitutes a receipt
may be treated as distinct from the part incorporating the contractual
terms. Bills of Lading, 52 I.C.C. 671, citing Porter, Law of Bills of
Lading, section 14.
The bill of lading provisions were implemented in order for the
parties to make a prima facie case against carriers and freight
forwarders under the Carmack Amendment. A bill of lading provides
evidence that goods were delivered to the carrier or freight forwarder
in good condition prior to shipment, or that cargo on arrival was in
damaged condition. If goods are damaged, the freight bill or bill of
lading can specify the monetary loss to cargo resulting from such
damage.
In the past, the former ICC prescribed the proper form and contents
of receipts and bills of lading to be issued by common carriers of
property and freight forwarders in compliance with the statute to
ensure that they convey necessary and essential information.
Potential Impact/Cost of Proposed Rule
The law has long required that all carriers and freight forwarders
shall issue receipts or bills of lading covering freight received for
transportation. A bill of lading is a document that lies at the heart
of every transportation transaction. It is a receipt for the
merchandise and a contract to transport and deliver the merchandise.
Thus, a bill of lading is a bilateral agreement where both sides make
guarantees. Shippers agree to tender certain freight, and carriers and
freight forwarders agree to price and service options. Presumably most,
if not all, freight forwarders have been issuing bills of lading in the
normal course of doing business.
By including non-household goods freight forwarders within its
scope, the revised rule will help to ensure that all parties to a
transaction are aware of their shipping arrangement, as well as the
condition of the cargo at the time it is tendered to a motor carrier
for line-haul transportation. The rule change will benefit both freight
forwarders and their customers alike because it could limit loss and
damage claims. Moreover, no freight forwarder will be put at an
competitive disadvantage. The proposed rule change will provide all
freight forwarders and their customers with actual knowledge of their
transportation transaction. It will also avoid uncertainty over which
freight forwarders are required to issue receipts or bills of lading
for property they accept for transportion in interstate commerce.
The FHWA anticipates that this revision will have no substantial
economic impact on the non-household goods freight forwarder industry
as a whole, the public, or on a substantial number of small entities.
The proposed revision merely includes the non-household goods freight
forwarder segment of the industry within the scope of the bill of
lading provisions. The household goods freight forwarding
[[Page 4099]]
segment of the industry is already subject to this requirement.
To the extent that the non-household goods segment of the
forwarding industry will now be required to comply with 49 CFR Part
373, the FHWA does not anticipate that the burden, total time, effort
or financial resources expended will be substantial. As noted above, in
1986, there were 590 non-household goods freight forwarders and 70
household goods freight forwarders, a ratio of 8.4 to 1. Nine years
later, In 1995, there were approximately 720 household goods freight
forwarders. Assuming the same 8.4 to 1 ratio holds today, there would
be over 6,048 non-household goods freight forwarders that would be
affected by the proposed revision of 49 CFR Part 373.
The proposed amendment to 49 CFR Part 373 will require all freight
forwarders to issue receipts and bills of lading for property they
transport in interstate commerce, a requirement which has been in
effect by statute since 1942 and by regulation until 1990.
Consequently, it is likely that all freight forwarders have already
been issuing such documents in the normal course of doing business.
Consequently, the FHWA does not believe that the rule change proposed
in this proceeding will have an annual effect on the non-household
goods segment of the forwarding industry of $100 million or more, lead
to a major increase in costs or prices, or have a significant adverse
effect on any sector of the economy. This minor rule change will not
per se add to a freight forwarders'' cost of doing business since it
merely reflects what is required of forwarders by their customers.
Accordingly, the FHWA does not believe that this action will create an
unnecessary regulatory burden on the non-household goods segment of the
freight forwarding industry. The FHWA merely intends to update its
regulations to achieve consistency with pre-existing statutory
requirements.
The FHWA seeks comments of all interested parties on the following
questions: (1) What is the estimated total annual burden and frequency
of issuing receipts and bills of lading for the non-household goods
segment of the forwarding industry? (2) Will the proposed rule change
in 49 CFR 373.201 create significant impacts or costs to the non-
household goods segment of the forwarding industry? Why, or why not?
Other Comments
Currently, 49 CFR Part 1005 governs the processing of claims for
loss, damage, injury, or delay to cargo handled by freight forwarders.
As noted above, Part 1005 relates to the Carmack liability provisions
that are retained under new 49 U.S.C. 14706 for all freight forwarders.
This part will eventually be redesignated and incorporated into Chapter
III of Title 49 of the Code of Federal Regulations. There is no need to
revise Part 1005 at this time, but the FHWA believes it is necessary to
further notify all freight forwarders that the previous law pertaining
to the procedures to follow in investigating loss and damage claims at
Part 1005 is continued until such time as changes are warranted. As
previously noted, until the FHWA amends its regulations, section 204 of
the ICCTA, Saving Provisions, provides that all rules and regulations
of the ICC shall continue in effect.
Other Matters
We are further notifying the public that new chapter 145 of title
49, U.S.C., (Federal-State Relations) preserves Federal authority over
intrastate transportation. New section 49 U.S.C. 14501(b) [formerly 49
U.S.C. 11501(g)] incorporates existing prohibitions against intrastate
regulation of freight forwarders by States, and, for the first time,
treats freight forwarders and transportation brokers the same.
Subsection (c) of section 14501 also includes freight forwarders, for
the first time, with motor carriers of property with respect to
preemption of intrastate regulation over trucking prices, routes, and
services. The ICCTA, however, did not preserve the ICC's prior
authority to prescribe intrastate rates for household goods freight
forwarders [formerly 49 U.S.C. 11501(a)(1) and (2)], nor did it affect
Hawaii's right to regulate motor carriers operating within the State of
Hawaii (49 U.S.C. 14501(b)(2)).
While most Federal preemption under chapter 145 is retained,
government regulation is also narrowed in several respects. For
example, State and local governments are able to regulate freight
forwarders of property with respect to motor vehicle safety, financial
responsibility, and other State standard transportation practices if
compliance is no more burdensome than compliance under Federal law. 49
U.S.C. 14501(c)(2) and (3). These exemptions, however, do not apply to
the transportation of household goods. 49 U.S.C. 14501(c)(2)(B).
Additionally, there is an election provision included in the ICCTA. If
a freight forwarder of property is affiliated with a direct air carrier
through common control, it has the right to elect being subject to the
jurisdiction of a State or local government. 49 U.S.C. 14501(c)(3)(C).
Thus, the ICCTA further reduces government oversight of the surface
freight forwarding industry by allowing the States to set
transportation standards, or by giving the carrier alternatives to
being subject to State jurisdiction.
Notwithstanding the expansion of registration jurisdiction, the
ICCTA continues to promote the deregulation theme of the past years
over the non-household goods segment of the motor carrier industry.
Here, the FHWA has merely attempted to review its regulations
applicable to freight forwarders to determine whether any changes are
warranted in order to conform to the ICCTA. We are also trying to
ensure that all freight forwarders are aware that they are now subject
to the jurisdiction of the FHWA for registration purposes. The FHWA
invites comments in this proceeding, specifically addressing
jurisdictional and regulatory issues.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in FHWA Docket No. MC-96-43 at the above address.
Comments received after the comment closing date will be filed in FHWA
Docket No. MC-96-43 and will be considered to the extent practicable,
but the FHWA may issue a final rule at any time after the close of the
comment period. In addition to late comments, the FHWA will also
continue to file, in the docket, relevant information that becomes
available after the comment closing date, and interested persons should
continue to examine the docket for new material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or within
the meaning of the Department of Transportation's regulatory policies
and procedures. It is anticipated that the economic impact of this
rulemaking will be minimal; therefore, a full regulatory evaluation is
not required. This rule, if adopted, merely includes non-household
goods freight forwarders within the scope of the FHWA bill of lading
regulations. This action will ensure that all parties to a
transportation transaction are aware of their shipping arrangement.
Moreover, the rule change will benefit both freight forwarders and
their customers alike because it could limit loss and damage claims,
and provide them with actual knowledge of their transportation
transaction. The FHWA
[[Page 4100]]
has evaluated the economic impact of the proposed changes on the non-
household goods freight forwarding segment of the industry and has
determined that the proporsal is reasonable, appropriate, and not per
se costly to this segment of the industry. The FHWA believes that non-
household goods freight forwarders issue some type of document similar
to bills of lading already. Nevertheless, comments, information, and
data are solicited on the economic impact of the potential change to 49
CFR Part 373.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on
small entities and has preliminarily determined that this regulatory
action will not have a significant economic impact on a substantial
number of small entities. Small entities that rely on forwarder service
will benefit by including the non-household goods forwarder segment of
the industry within the scope of Part 373. This action will ensure that
all forwarders issue receipts or bills of lading covering forwarder
traffic for which the forwarder assumes full responsibility.
The FHWA does not expect that this action will have a significant
impact on the non-household goods freight forwarding segment of the
industry because they have traditionally been required by Federal law
to issue receipts and bills of lading. This provision merely
reestablishes the consistency between regulatory and statutory
requirements which existed prior to 1990. Moreover, most non-household
freight forwarders, regardless of their size, presumably comply with
the statutory provisions that require them to issue receipts and bill
of lading. This is because the forwarder is the transportation company
upon whom responsibility is placed for issuance of a receipt or bill of
lading and for any loss, damage, or injury to the property caused by it
or by any motor carrier, railroad, or other transportation company to
which such property may be delivered or over whose lines such property
may pass. Accordingly, requiring all freight forwarders to issue a
receipt or bill of lading will not significantly impact the industry
because their issuance will preserve the relations between the
forwarder and its customers once the regulations are promulgated.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been
preliminarily determined that this proposal would not have sufficient
federalism implications to warrant the preparation of a federalism
assessment.
While most Federal preemption over State regulation of freight
forwarders is retained under the ICCTA, it is also narrowed in several
instances. The ICCTA encouraged State cooperation in the enforcement of
motor carrier registration and financial responsibility as a condition
of Motor Carrier Safety Assistance Program (MCSAP) funding. Any
additional costs or burdens that the FHWA may impose upon the States
because of this type of narrowed preemption would be generated from the
requirement that the States and local governments are able to regulate
freight forwarders with respect to motor vehicle safety, financial
responsibility, registration requirements, and other State standard
transportation practices if compliance is no more burdensome than
compliance under Federal law. The FHWA does not expect that this action
of expanding the FHWA's regulations to include the non-household goods
freight forwarder segment will infringe upon the State's ability to
discharge traditional State governmental functions. Interstate
commerce, which is the subject of these regulations regarding
interstate operations, has traditionally been governed by Federal laws.
The FHWA does not expect that it would require the States to adopt
these rules once the regulations are promulgated.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
The FHWA is proposing to require all freight forwarders to issue
receipts and bills of lading for the property they transport in
interstate commerce. The FHWA believes that the majority of freight
forwarders now issue receipts and bills of lading in the normal course
of their activities. The FHWA further believes that the disclosure of
this information by freight forwarders to shippers and carriers is a
usual and customary practice within the industry. The public,
forwarders, and their customers alike benefit by the disclosure of this
information because it can limit loss and damage claims. Moreover, the
rule change will assist all freight forwarders and their customers by
helping to ensure that they receive actual knowledge of their
transportation transaction. The FHWA requests that the public comment
on the accuracy of the paperwork burden estimate.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects in 49 CFR Part 373
Bills of lading, Highway safety, Highways and roads, Motor
carriers.
Issued on: January 17, 1997.
Rodney E. Slater,
Federal Highway Administrator.
For the reasons set forth above, FHWA proposes to amend title 49,
Code of Federal Regulations, Chapter III, as follows:
1. The authority citation for part 373 continues to read as
follows:
Authority: 49 U.S.C. 13301 and 14706; 49 CFR 1.48.
2. Section 373.201 is revised to read as follows:
Sec. 373.201 Receipts and bills of lading for freight forwarders.
Every freight forwarder shall issue the shipper a receipt or
through bill of lading, covering transportation from origin to ultimate
destination, on each shipment for which it arranges transportation in
interstate commerce. Where a motor common carrier receives freight at
the origin and issues a receipt therefor on its form with a notation
showing the freight forwarder's name, the freight forwarder, upon
receiving the shipment at the ``on line'' or consolidating station,
shall issue a through bill of lading on its form as of
[[Page 4101]]
the date the carrier receives the shipment.
[FR Doc. 97-1882 Filed 1-27-97; 8:45 am]
BILLING CODE 4910-22-P
