[Federal Register: April 6, 2009 (Volume 74, Number 64)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 373
[Docket No. FMCSA-1997-2290]
General Jurisdiction Over Freight Forwarder Service
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends
its regulations to require all surface freight forwarders to issue a
receipt or bill of lading on each shipment for which they arrange
transportation of freight by commercial motor vehicle in interstate
commerce. This regulatory change implements amendments enacted in the
ICC Termination Act of 1995 (ICCTA). While the current rule concerning
receipts or bills of lading applies only to household goods freight
forwarders, the new rule applies to both household goods and non-
household goods freight forwarders.
DATES: Effective May 6, 2009.
FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Telephone: (202)
366-5370, E-mail address: FMCSAregs@dot.gov.
Availability of Rulemaking Documents
For access to docket FMCSA-1997-2290 to read background documents
and comments received, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov at any time or
to U.S. Department of Transportation, Room W12-140, 1200 New Jersey
Ave., SE., Washington, DC 20590, 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
I. Legal Basis for the Rulemaking
This final rule is based on the authority of the ICCTA (Pub. L.
104-88, 109 Stat. 803, Dec. 29, 1995). The ICCTA gave the Secretary of
Transportation (Secretary) general jurisdiction over all freight
forwarder service involving transportation in interstate commerce under
49 U.S.C. 13531. Under 49 U.S.C. 13301(a), the Secretary is authorized
to issue regulations to carry out the provisions of the ICCTA
applicable to motor carriers, brokers, and freight forwarders.
Under 49 U.S.C. 14706(a), motor carriers and freight forwarders
providing transportation or service subject to the Secretary's
jurisdiction must issue a receipt or bill of lading for property
received for transportation. These entities are liable for loss of, or
damage to, the property described in the receipt or bill of lading.
The statutory requirement to provide a receipt or bill of lading
was implemented in order for claimant parties (shippers) to make a
prima facie case against motor carriers and freight forwarders under
the Carmack amendment.\1\ A receipt or bill of lading provides evidence
that goods were delivered to the carrier or freight forwarder. If goods
are damaged, the receipt or bill of lading can specify the monetary
value of the cargo, i.e., the loss resulting from damage.
\1\ The Carmack amendment to the Interstate Commerce Act was
passed in 1906 as part of the Hepburn Act, ch. 5391, 34 Stat. 584.
It established uniform liability procedures for goods transported in
interstate commerce. Its terms are now found at 49 U.S.C. 14706.
Part 370 of title 49, Code of Federal Regulations (CFR) (formerly
49 CFR part 1005), sets forth the principles and practices for the
investigation and voluntary disposition of claims for loss, damage,
injury, or delay to cargo handled by motor carriers and freight
forwarders. It implements the Carmack amendment, as does 49 CFR part
373 pertaining to the issuance of receipts and bills of lading by motor
carriers and freight forwarders.
This final rule harmonizes 49 CFR 373.201, entitled "Bills of
lading for freight forwarders," with the statutory requirements of the
ICCTA. It revises 49 CFR 373.201 to include the general commodities
segment of the freight forwarding industry within its scope. This
revision is consistent with the receipt or bill of lading requirements
imposed on all freight forwarders by 49 U.S.C. 14706(a).
A more recent legislative provision affecting the freight
forwarding industry, section 4142 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
(Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005), authorized the
Secretary to continue registering general commodities freight
forwarders if "[t]he Secretary finds [(1)] that such registration is
needed for the protection of shippers and [(2)] that the person is fit,
willing, and able to provide the service and to comply with this part
and applicable regulations." The Agency found that registration of
general commodities freight forwarders is needed for the protection of
shippers (see 71 FR 50115, Aug. 24, 2006). This finding reaffirmed the
ICCTA mandate requiring FMCSA to register all freight forwarders. Thus,
the FMCSA continues to register all general commodities freight
forwarders subject to its jurisdiction and to require procedures
necessary for the protection of shippers.
In addition, section 4303(c) of SAFETEA-LU directed FMCSA to
eliminate the distinction between motor common or contract carriers in
registration. Thus, FMCSA makes a technical correction to the existing
rule to eliminate the word "common" from within its scope.
In January 1997, the Federal Highway Administration (FHWA), the
predecessor agency to FMCSA within the DOT, issued a notice of proposed
rulemaking (NPRM) (62 FR 4096, Jan. 28, 1997) to amend 49 CFR 373.201,
under the then existing heading "Bills of Lading for Freight
Forwarders." The NPRM proposed to require that all freight forwarders,
not just household goods freight forwarders, issue a receipt or bill of
lading for the transportation of each shipment they arrange for
transportation in interstate commerce.
As proposed in the NPRM, this final rule amends 49 CFR 373.201,
first by retitling it "Receipts and bills of lading for freight
forwarders," and then by including within its scope all segments of
the freight forwarding industry. This regulation implements the
statutory requirement for issuing a receipt or bill of lading imposed
on all freight forwarders by 49 U.S.C. 14706(a).
The term freight forwarder is defined at 49 U.S.C. 13102(8) as
* * * a person holding itself out to the general public (other
than as a pipeline, rail, motor, or water carrier) to provide
transportation of property for compensation and in the ordinary
course of its business--
(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 this subtitle.
The term does not include a person using transportation of an
air carrier subject to part A of subtitle VII [of title 49, U.S.C.].
This rulemaking has a long history, which was explained in detail
in the NPRM. The Surface Freight Forwarder Deregulation Act of 1986
(Pub. L. 99-521, 100 Stat 2993, Oct. 22, 1986) (the Deregulation Act),
substantially deregulated the general commodities segment of the
freight forwarding industry, but it retained the regulation of freight
forwarders that service the transportation of household goods.
To implement pertinent provisions of the Deregulation Act, the
former ICC made minor revisions in the CFR to exclude general
commodities freight forwarders from the scope of most ICC rules
applicable to freight forwarders. See Ex Parte No. MC-184, Regulation
of Household Goods Freight Forwarders Under the Surface Freight
Forwarder Deregulation Act of 1986, 3 I.C.C. 2d 162 (1986). In its 1986
rulemaking, the ICC did not revise the regulations for the issuance of
bills of lading (former 49 CFR part 1081, now redesignated as 49 CFR
part 373, subpart B) \2\ to exclude general commodities freight
forwarders from their scope because the ICC determined ``[t]he Carmack
amendment requires all carriers and freight forwarders to issue bills
of lading for property they receive (49 U.S.C. 11707(a)(1)) and is
central to its liability provisions.'' See 3 I.C.C. 2d 162 at 166
\2\ Title 49 CFR part 1081 was redesignated as 49 CFR part 373,
subpart B, on October 21, 1996 (61 FR 54706).
In 1990, the ICC issued a final rule (Practice and Procedure--Misc.
Amendments--Revisions, 6 I.C.C. 2d 587 (1990)), which amended former 49
CFR 1081.1 to require only household goods freight forwarders to issue
bills of lading. The ICC did not explain why it was making this change,
in light of its recognition in the 1986 rulemaking proceeding that
general commodities freight forwarders were still subject to Carmack
amendment requirements. Whatever the reason for the regulatory change,
the underlying statutory requirement that all freight forwarders issue
receipts or bills of lading for property they receive or deliver for
transportation in interstate commerce remains unchanged.
Then, in 1995, ICCTA, at 49 U.S.C. 13531, re-established the
Secretary's jurisdiction over all segments of the freight forwarding
industry. This jurisdiction included the requirement that general
commodities freight forwarders must register to operate in interstate
III. Discussion of Comments to the NPRM
In response to the January 28, 1997, NPRM, FMCSA received 11
comments from freight forwarding entities, trucking companies, shippers
and the Advocates for Highway and Auto Safety (Advocates).\3\ The
following commenters agree with the original proposal to amend part
373. The Health and Personal Care Distribution Conference, Inc., and
National Small Shipments Traffic Conference, Inc., note that the change
to 49 CFR 373.201 is necessary to "remove an inconsistency in the
regulation." Freight Forwarders Council, Transportation
Intermediaries, and Advocates also offer qualified support for the rule
\3\ The Agency received comments from Freight Forwarders Council
of America, Inc. (Freight Forwarders Council); Health and Personal
Care Distribution Conference, Inc.; MRS Freight Forwarding Services,
Inc. (MRS); William J. Monheim, STB Practitioner (Monheim); National
Small Shipments Traffic Conference, Inc.; Transportation
Intermediaries Association (Transportation Intermediaries); William
J. Tucker, CTB, president of Tucker Company (Tucker); Unisource
Transportation Services, Inc. (Unisource); and the Advocates. The
Health and Personal Care Distribution Conference, Inc. and National
Small Shipments Traffic Conference, Inc. submitted joint comments
through counsel. MRS and Unisource submitted nearly identical sets
In contrast, Monheim, MRS, Unisource, and Tucker oppose the
proposed amendment to part 373.
Comments About ICCTA Provisions Unrelated to Freight Forwarders
In the preamble to the NPRM, the Agency provided information about
a number of new requirements of the ICCTA to help make the public aware
of the statutory changes. Those discussions were informational only and
were not intended to be the basis for this regulatory action. However,
substantial percentage of the comments to the docket focused on those
FMCSA acknowledges the concerns of the commenters, but their
comments about the informational discussions do not have any bearing on
the substance of the original proposal. Thus, the remainder of the
discussion in the preamble to FMCSA's final rule will focus on the
data, information, and comments related to the Agency's proposal
concerning freight forwarder receipts and bills of lading.
Response to Comments
The objections are grouped into five categories: A) jurisdictional
boundaries of the Agency over freight forwarders; B) flexible nature of
freight forwarding operations and the extent to which this should be
reflected in Sec. 373.201; C) purpose, scope, and contents of the
receipt or bill of lading; D) role of the bill of lading with respect
to the liability provisions of the Carmack amendment (49 U.S.C. 14706);
and E) other issues of interest. Comments are discussed under these
A. Jurisdictional Boundaries
Necessity for a Rule. MRS and Unisource set forth a number of
arguments against bringing general commodities freight forwarders under
the Secretary's jurisdiction. MRS and Unisource contend that because
the freight forwarding industry neither abuses market power nor
conducts its operations in ways contrary to the public interest, it
should not be burdened with additional regulations and should be
exempted under 49 U.S.C. 13541. Further, they state that the proposed
change to Sec. 373.201 is unnecessary because 49 CFR 1035.1 already
requires all common carriers to issue bills of lading. They add that
the requirement to issue bills of lading also is promulgated at 49 CFR
373.101, 373.103, and 373.105.
FMSCA Response. This rulemaking proceeding is not the proper forum
for seeking an exemption under section 13541. A specific request for an
exemption would have to be filed with the Agency in order to obtain
such relief. In any event, under 49 U.S.C. 13541, FMCSA (pursuant to
authority delegated by the Secretary) already concluded in August 2006
that continued registration of general freight forwarders is needed to
protect shippers (71 FR 50115, Aug. 24, 2006).
The FMCSA disagrees with MRS and Unisource's contention that the
proposed change to Sec. 373.201 is unnecessary. Part 1035 applies to
rail and water carriers only, i.e., it does not include motor carriers.
While Sec. Sec. 373.101, 373.103, and 373.105 apply to motor carriers,
they do not apply to freight forwarders.
Consolidating Station in Terminal Area. MRS and Unisource state
that, if a freight forwarder maintains a consolidating station in a
terminal area, then 49 U.S.C. 13503(a)(1)(B)(iii) exempts the forwarder
from the Agency's jurisdiction when conducting business at its
FMCSA Response. FMCSA agrees with MRS and Unisource that local
transfer, collection, or delivery service provided by a freight
forwarder in a terminal area continues to be exempt from the
Secretary's jurisdiction under 49 U.S.C. 13503(a)(1)(B). However, this
does not exempt the freight forwarder from providing a receipt or bill
of lading for property it receives or delivers for regulated
transportation, since this requirement applies to those services
performed outside the terminal area. A receipt or bill of lading issued
inside a terminal area has full validity for regulated transportation
outside the terminal area and in commerce. The requirement to issue a
receipt or bill of lading depends on whether the transportation of
those goods is regulated, not on where the receipt or bill of lading is
issued. A freight forwarder performing assembly or consolidating
services, or any variation on such services, is required under 49
U.S.C. 14706(a) to issue a receipt or bill of lading or provide its
consent to the carrier to do so.
Applicability of Sec. 373.201. MRS and Unisource question whether
Sec. 373.201 would be applicable in certain cases, and they give
examples. They state that there are instances when the motor carrier,
and not the freight forwarder, consolidates the freight being
transported. They assert that the applicability of Sec. 373.201
depends on the circumstances involved.
FMCSA Response. FMCSA agrees there are instances when the motor
carrier, and not the freight forwarder, consolidates the freight being
transported. A motor carrier providing consolidating services on behalf
of the freight forwarder may obtain the freight forwarder's consent to
issue the receipt or bill of lading. If, with the consent of the
freight forwarder, the motor carrier issues the required receipt or
bill of lading on behalf of the freight forwarder or delivers property
for a freight forwarder on the freight forwarder's bill of lading, the
freight forwarder has complied with Sec. 373.201.
B. The Flexible Nature of Freight Forwarding Operations, and the Extent
To Which This Should Be Reflected in Sec. 373.201
Applicability of the Definition of Freight Forwarder. Tucker
criticizes the NPRM preamble for using the statutory definition for the
term freight forwarder.
FMCSA Response. FMCSA does not have the discretion to alter the
statutory definition for the term freight forwarder. Although we
recognize it may not convey fully the diverse services provided by
agents who choose to represent themselves as freight forwarders today,
FMCSA is required to use the statutory definition for freight
Flexibility. Freight Forwarders Council, MRS, Unisource, Monheim,
Tucker, and Transportation Intermediaries each asserts that freight
forwarding operations have become increasingly flexible and diversified
in response to changing market conditions. Several of these commenters
also object to portions of the NPRM preamble language that they believe
ignore these operational realities.
FMCSA Response. This final rule does not contradict the principle
of economic deregulation that was reaffirmed in the ICCTA, nor does
this action undermine the fundamental diversity and nature of freight
forwarder operations. Regardless of whether a freight forwarder
actually performs a particular service or provides for that service to
be performed by someone else, it must assume legal responsibility for
the transportation from the place of receipt to the place of
destination. Consequently, a freight forwarder is still required to
issue a receipt or bill of lading pursuant to 49 U.S.C. 14706.
C. The Purpose, Scope, Form, and Contents of the Receipt or Bill of
Format and Contents of the Bill of Lading. Five commenters offered
suggestions on the content of bills of lading. Freight Forwarders
Council suggested that FMCSA use a model bill of lading, while
Advocates recommended stamping the bill of lading with reliable dates
and with departure and arrival/delivery times. Transportation
Intermediaries wanted to develop uniformly accepted transportation
FMCSA Response. There is a significant difference between the
receipt and bill of lading requirements in Sec. 373.101, which specify
information that must be contained on the motor carrier's receipt or
bill of lading, and those of Sec. 373.201 that apply to freight
forwarders. Section 373.201 only
requires that a freight forwarder issue a receipt or bill of lading,
covering transportation from origin to ultimate destination, on each
shipment for which it arranges transportation in interstate commerce.
Section 373.201 does not specify what information must be contained on
the receipt or bill of lading or prescribe the format of these
documents. The Agency does not approve or recommend any particular
model receipt or bill of lading for freight forwarders to use in their
operations, and the form and content of these documents is beyond the
scope of this final rule.
Practicality of Requiring a Receipt or Bill of Lading. MRS and
Unisource believe that imposing a requirement for general commodities
freight forwarders to issue a second receipt or bill of lading, in
addition to one issued by the motor carrier that picks up the shipment,
is impractical and creates confusion for the freight forwarding
FMCSA Response. The issuance of a receipt or bill of lading is a
long-standing practice observed by the entire freight forwarding
industry and is required by statute. Consequently, FMCSA believes most
parties to a freight forwarding transaction will not be confused or
burdened by this requirement.
D. Role of the Bill of Lading With Respect to the Liability Provisions
of the Carmack Amendment (49 U.S.C. 14706)
Bill of Lading Not Necessary. Three commenters assert that it is no
longer necessary for freight forwarders to issue bills of lading.
Tucker believes that this rule change will not benefit freight
forwarders or customers because, in his view, the liability protections
provided by the Carmack amendment flow from a prior contract of
carriage and not the bill of lading. Transportation Intermediaries
similarly asserts that, under section 14101(b), bills of lading are not
necessary since freight forwarders and shippers may mutually "waive
any or all rights and remedies under this part for the transportation
covered by contract." Monheim asserts that ICCTA abolished the
distinction between common and contract carriers, allowing freight
forwarders to exercise the contract authority provided under section
14101(b). Monheim comments that the provisions of the Bills of Lading
Act no longer apply to freight forwarders.
FMCSA Response. The liability provisions of the Carmack amendment,
codified at 49 U.S.C. 14706, apply to all transportation under the
jurisdiction of the Secretary. Motor carriers and freight forwarders
providing transportation or service are liable to the "person entitled
to recover [compensation for loss or damage to the property] under the
receipt or bill of lading." Section 14706(a) makes it clear that
failure to issue a receipt or bill of lading does not change the
liability of the carrier. In addition, section 14706(a) does not
require a prior contract of carriage to tie in the Carmack liability
provisions. Whether the statute is recognized in the marketplace is
immaterial because the section 14706 liability provisions apply to
receipts and bills of lading. Although a contract of carriage would
indeed take precedence in a court of law over a receipt or bill of
lading containing no contractual terms, the receipt or bill of lading
nonetheless carries legal force and effect under the general liability
provisions of section 14706(a).
Finally, the assertion that a receipt or bill of lading is no
longer required because of 49 U.S.C. 14101(b) is not correct. That
provision enables carriers subject to chapter 135 of title 49 U.S.C.
(including general commodities freight forwarders) to enter into
contracts of carriage that could potentially waive any or all rights
covered by the contract, with certain exceptions not pertinent to this
rule. However, the option of waiving the receipt or bill of lading
requirement is not reason enough to forego imposing it, since not
everyone will choose to waive the requirement.
Rule Change is Impractical. Unisource contends that FMCSA's
proposed amendment to Sec. 373.201 will be impractical; cause
confusion among shippers, motor carriers, dispatchers, and freight
forwarders; and raise questions about liability. It asks, for example,
if a freight forwarder would be liable for a shipment that was lost or
damaged before it was received merely because its name is on the bill
FMCSA Response. The issue Unisource raises would be determined
under contract law, other case law, and circumstantial evidence. If a
forwarder has not physically accepted a shipment, the forwarder would
not be liable--that is, would not be required to accept legal
responsibility for the loss or damage--merely because its name is on
the bill of lading, unless the contract of carriage specified
E. Other Issues of Interest
The NPRM is Misleading. Monheim contends that the NPRM is
misleading with regard to a State's role in regulating freight
forwarders. Unless the carrier specifically requests that a State's
regulations apply to the carrier, Monheim believes that the States are
completely removed from any regulation of freight forwarders for rates,
routes or services, including bills of lading.
FMCSA Response. The NPRM merely stated that, under 49 U.S.C.
chapter 145, Federal preemption of general commodities freight
forwarders was narrowed in several respects. Chapter 145 allows States
to regulate freight forwarders' intrastate activities in these areas if
compliance is no more burdensome than interstate compliance under
Paragraphs (b) and (c) of 49 U.S.C. 14501 prohibit State regulation
of intrastate rates, intrastate routes, and intrastate services of
freight forwarders of property; but they make a partial exception for
uniform cargo liability rules, uniform bills of lading or receipts,
uniform cargo credit rules, and certain antitrust immunity. No other
distinction was intended here.
Significance of this Final Rule. Tucker challenges the NPRM's
estimate that the rule will have an annual effect on the general
commodities segment of the freight forwarding industry of less than
$100 million. He contends the Agency has no basis for assuming that the
ratio of general commodities freight forwarders to household goods
freight forwarders is essentially the same today as in 1986.
Unisource believes that the rule would place a significant
unnecessary burden on shipments made via a general commodities freight
forwarder, versus those placed on other modes of transportation.
FMCSA Response. The cost impact analysis in the NPRM assumed the
same ratio of general commodities freight forwarders to household goods
freight forwarders of 8.4 to 1 as in 1986, when the Deregulation Act
was enacted. The ratio has decreased considerably since then. The
analysis set forth below updates this information.
As of November 2007, the last complete year of available data,
there were 1,402 active entities on file at FMCSA in the Licensing and
Insurance (L&I) information system that identified themselves to FMCSA
as freight forwarders.\4\ Of these, 1,117 identified themselves as
general commodities freight forwarders; and 285 identified themselves
as household goods freight forwarders. This is a ratio of approximately
3.9 to 1 of general commodities freight forwarders to household goods
freight forwarders. This considerable drop from the 1986 ratio of 8.4
to 1 may indicate that some
general commodities freight forwarders are choosing to represent
themselves as brokers.
\4\ All freight forwarders--general commodities and household
goods--are required to register with FMCSA for their operating
Regarding the economic impact of this rule, the issuance of
receipts or bills of lading by freight forwarders--including general
commodities freight forwarders--is a well-established business
practice. In the words of the Freight Forwarders Council:
All forwarders today issue bills of lading, so no change will be
caused by the adoption of the proposed regulations. Not to issue a
bill of lading violates [the] Federal statute [at] 49 U.S.C.
[See docket item FMCSA-1997-2290-0005-0001]
Since forwarders have for many years been required to issue
receipts or bills of lading, there should be no significant increase in
cost by making 49 CFR 373.201 conform to the long-standing statutory
requirement. Thus, a requirement for general commodities freight
forwarders to issue a receipt or bill of lading will not, in the
aggregate, generate an economic burden or create a major increase in
costs or prices or have a significant adverse effect on any sector of
the industry. FMCSA's issuance of this final rule merely reestablishes
the consistency between statutory and regulatory requirements.
Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or within
the meaning of the U.S. Department of Transportation's regulatory
policies and procedures. It is anticipated that the economic impact of
this final rule will be minimal.
A receipt or bill of lading is a document that lies at the heart of
every transportation transaction. It documents a bilateral agreement
under which both sides make guarantees. The requirement for all freight
forwarders to issue a receipt or bill of lading for property they
transport has been in effect by statute since 1942 and by regulation
until 1990, when the former ICC changed its regulations to limit the
requirement to household goods freight forwarders. Based on comments
from the Freight Forwarders Council and verification checks made for
FMCSA (as discussed in footnote 5), it appears it is a usual and
customary practice for most general commodities and household goods
freight forwarders to issue such a document in the normal course of
This rule revises 49 CFR 373.201 to include general commodities
freight forwarders within the scope of the FMCSA's receipt and bill of
lading regulation, as required by 49 U.S.C. 14706. This action requires
that all parties to a transportation transaction be given documentation
of their shipping arrangement. The FMCSA has evaluated the economic
impact of the proposed changes on the general commodities freight
forwarding segment of the industry and determined that the rule change
is within the statutory mandate, and is reasonable, appropriate, and
does not impose significant costs to the general commodity segment of
the freight forwarding industry.
This final rule removes any uncertainty with respect to which
freight forwarders are required to issue a receipt or bill of lading
for property they accept for transportation in interstate commerce.
Given that most general commodities freight forwarders already issue a
receipt or bill of lading, FMCSA anticipates none of these freight
forwarders will expend any additional effort and resources to comply
with amended Sec. 373.201.\5\
\5\ After reviewing the comments to the proposed rule and
conducting a literature search on the issuance of bills of lading by
freight forwarders, FMCSA concluded that as a usual and customary
practice freight handed over to a carrier was accompanied by a
receipt or bill of lading. To confirm this, FMCSA attempted to
contact some firms in the industry and the trade associations who
submitted comments to the proposed rule. Calls were made on August
9, 2006, to: Transportation Intermediaries; Powers Freight Express
of Lynbrook, New York; York Services, Inc. of York, Pennsylvania;
and Patron Services, Inc. of Baltimore, Maryland. Each indicated
that they believed most freight forwarders issue receipts or bills
of lading in the normal course of doing business.
Consequently, FMCSA does not believe this final rule will have an
annual effect on the general commodities freight forwarder 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. Thus, requiring all freight forwarders to
comply with this final rule to provide a receipt or bill of lading will
not significantly impact the industry.
The Agency is not required to prepare a stand-alone Regulatory
Analysis. However, because of the concern expressed by some commenters
that there might be a large impact, the Agency has prepared one to
fully explain the costs and benefits of this rulemaking action. A copy
of the analysis is included in the docket (FMCSA-1997-2290).
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FMCSA has evaluated the effects of this rule on
small entities, which comprise well above 50 percent of the freight
forwarding industry, and has determined that this final regulatory
action will not have a significant impact on a substantial number of
One reason this action does not have a significant impact on
general commodities freight forwarders is that they have been required
by statute to issue receipts and bills of lading since 1942. In 1990,
the ICC removed this requirement from its regulations, notwithstanding
the statutory requirement. This rule reestablishes in 49 CFR 373.201
this long standing statutory requirement that all freight forwarders
are required to issue receipts or bills of lading for the
transportation they arrange in interstate commerce.
Based on all information available to the Agency, including
comments from Freight Forwarders Council and FMCSA checks of industry
practices, the Agency believes that most freight forwarders have, for
many years, been aware of this statutory requirement. Issuing a receipt
or bill of lading is a well established, usual and customary business
practice of general commodities freight forwarders and the industry as
a whole. Accordingly, the practical consequence of today's final rule
for the vast majority of freight forwarders is negligible.
The small minority of general commodities freight forwarders not
already providing a receipt or bill of lading as legal documentation
will now be required by regulation, as well as statute, to issue such a
document. To the limited extent that this rule may result in
incremental increases in compliance with the receipt or bill of lading
requirements, the public, freight forwarders, and their customers alike
will benefit from this requirement. In particular, small entities that
rely on general commodities freight forwarder service will benefit from
the Agency requiring general commodities forwarders to provide a
receipt or bill of lading establishing legal documentation for any
loss, damage, or injury to the property that may be transported after
the freight forwarder takes possession of the goods tendered.
Commenters have not presented any information to suggest or
convince us that there will be a significant economic impact on the
general commodities freight forwarder industry by promulgation of this
final rule. This final rule merely mandates that they be
in compliance with the long-standing statutory requirement and perform
what is already the industry's usual and customary business practice--
namely, to issue a receipt or bill of lading for the property for which
they arrange transportation in interstate commerce.
Executive Order 13132 (Federalism)
FMCSA analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13132. FMCSA has determined that
this rulemaking will not have a substantial direct effect on States,
nor will it limit the policy-making discretion of the States. Nothing
in this document will preempt any State law or regulation. FMCSA has
therefore determined this rule does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520)
requires that FMCSA consider the impact of paperwork and other
information collection burdens imposed on the public. As noted above,
the practice of issuing receipts or bills of lading for cargo
transported is a well established, usual and customary business
practice of all freight forwarders. Therefore, FMCSA believes the
paperwork reduction exception for usual and customary business practice
applies in this case. Thus, this action does not involve an information
collection that is subject to the requirements of the PRA.
National Environmental Policy Act
The Agency analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, published
March 1, 2004, in the Federal Register (69 FR 9680), that this action
has a categorical exclusion (CE) under Appendix 2, paragraph 6.l. of
the Order from further environmental documentation. That CE relates to
establishing regulations, and actions taken pursuant to these
regulations, concerning motor carrier's issuance and retention of bills
of lading. In addition, the Agency believes that this action involves
no extraordinary circumstances that would have any effect on the
quality of the environment. Thus, the action does not require an
environmental assessment or an environmental impact statement.
The Agency has also analyzed this final rule under 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. Approval of this action is exempt from the CAA's general
conformity requirement since it involves rulemaking action. (See 40 CFR
93.153(c)(2)(iii).) It will not result in any emissions increase nor
would it have any potential to result in emissions that are above the
general conformity rule's de minimis emission threshold levels.
Moreover, it is reasonably foreseeable that this final rule will not
increase total commercial motor vehicle (CMV) mileage, nor will it
change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of
motor carriers. By this action, FMCSA merely updates its existing
regulation at Sec. 373.201 to require that all freight forwarders
issue receipts or bills of lading consistent with statutory
Executive Order 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of this final rule in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact resulting from its promulgation.
Unfunded Mandates Reform Act of 1995
This rulemaking will not impose an unfunded Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et
seq.), that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $136.1
million or more in any one year.
Executive Order 12630 (Taking of Private Property)
This final rule does not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Executive Order 13211 (Energy Supply, Distribution, or Use)
The FMCSA analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We determined that it is not a "significant
energy action" under that Executive Order because it will not be
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
Executive Order 12988 (Civil Justice Reform)
This action meets 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.
Executive Order 13084 (Consultation and Coordination With Indian Tribal
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084. Because this rule does
not significantly or uniquely affect the communities of the Indian
tribal governments, the funding and consultation requirements of this
Executive Order do not apply.
Executive Order 13045 (Protection of Children)
The FMCSA analyzed this proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FMCSA determined that this rulemaking does not
concern an environmental risk to health or safety that may
disproportionately affect children.
Privacy Impact Assessment
The FMCSA conducted a privacy impact assessment of this proposed
rule as required by section 522(a)(5) of division H of the Fiscal Year
(FY) 2005 Omnibus Appropriations Act, Public Law 108-447, 118 Stat.
3268 (December 8, 2004) [set out as a note to 5 U.S.C. 552a]. The
assessment determined there are no privacy information impacts.
List of Subjects in 49 CFR Part 373
Bills of lading, Highway safety, Highways and roads, Motor
For the reasons set forth above, FMCSA amends chapter III of title 49
CFR as follows:
PART 373--RECEIPTS AND BILLS
1. Revise the authority citation for part 373 to read as follows:
Authority: 49 U.S.C. 13301, 13531 and 14706; and 49 CFR 1.73.
2. Revise Sec. 373.201 of subpart B to read as follows:
Sec. 373.201 Receipts and bills of lading for freight forwarders.
Each freight forwarder must 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 carrier receives freight at the
origin and issues a receipt therefor on its form with a notation
showing the freight forwarder's name, then the freight forwarder, upon
receiving the shipment at the "on line" or consolidating station,
must issue a receipt or through bill of lading on its form as of the
date the carrier receives the shipment.
Issued on: March 30, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-7639 Filed 4-3-09; 8:45 am]
BILLING CODE 4910-EX-P