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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Notices
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Next, for FMCSA to grant an exemption, FMCSA would have to conclude that the $75,000 bond requirement is not needed to protect shippers from the abuse of market power or that the requested exemption is of limited scope. 49 U.S.C.
13541a2. SBTC, like AIPBA before it,28 did not address the limited scope provision.29 SBTC fails to argue why in 2019 the broker bond was not needed to protect shippers from the abuse of market power. Instead, SBTC states that in 2015 FMCSA did not provide adequate support for its determination that AIPBA did not make an adequate showing that the broker bond is not necessary to protect shippers from the abuse of market power.30 SBTC has the burden of showing that regulation is not necessary; it is not FMCSAs burden to show why regulation is necessary.31
Such a standard would turn the exemption statute on its head and undermine the Administrative Procedure Act.
Finally, in order to grant SBTCs request, FMCSA would need to determine that its proposed exemption is in the public interest. As the overwhelming majority of public comments attest,32 SBTC has failed to show that the proposed exemption is in the public interest. Aside from unsupported statements addressed below, SBTC does not attempt to show why exempting a large swath of the brokerage and freight forwarder industries from the $75,000 bond requirement for 5 years is in the public interest. Instead, SBTC critiques FMCSA
for purportedly not showing how AIPBAs proposed exemption was not in the public interest.33 As noted above, FMCSA provided extensive reasoning as to why AIPBAs request was not in the public interest in 2015. 80 FR at 17146.
SBTC claims, without offering support, that granting the exemption is in the public interest to ensure an Fidelity Association of America, at 1; comments of JW Surety Bonds, at 1; comments of the OwnerOperator Independent Drivers Association, at 12.
28 80 FR at 17145 n.2.
29 While FMCSA need not resolve the issue in todays decision, the Agency questions whether, in an industry dominated by small businesses, a 5-year exemption for brokers and freight forwarders with annual revenues below $15.01 million could fairly be considered one of limited scope.
30 SBTC Application, at 12.
31 ATA also noted this burden in its comments.
Comments of the American Trucking Associations, at 3 the burden of course is not on the Agency to demonstrate that the requirement is necessary, but on SBTC to establish that it is unnecessary..
32 FMCSA notes that the unanimity among multiple associations representing multiple industries in opposition to SBTCs request is striking.
33 SBTC Application, at 12.

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uninterrupted supply chain. 34 In reality, as explained above, granting SBTCs request would harm the finances of motor carriers and therefore interfere with the supply chain.35 Having the bond available benefits motor carriers in the event of broker or freight forwarder non-payment.36 In addition, SBTCs contentions that 1 the $75,000 bond impedes small carriers ability to add brokerage operations,37 and 2 the current broker census as of September 2019, which featured an increase in the number of brokers since an initial decline following the bond increase in 2013, cannot be fairly attributed to a return of these small business brokers that were utterly decimated in December 2013 38 are unsupported. In fact, commenters point out how the bond requirement has not harmed small businesses. The MCRR Coalition, an organization that includes associations with over 15,000 small regulated motor carriers,39 indicated that the argument that the increased bond amount prejudices small businesses is meritless.
The annual surety bond premium is less than $2,000 on average, according to the MCRR Coalition.40 David Owen, the President of the National Association of Small Trucking Companies NASTC, in an affidavit attached to the MCRR
Coalitions comments, stated that the fear that the increased bond amount would be cost prohibitive for small brokers and have an anti-competitive effect did not materialize.41
As noted above, SBTC argues that the factoring industrys direct payment of motor carriers obviates the need for the smallest of brokers to have a broker bond.42 SBTCs argument is unsupported by any evidence, however, and therefore FMCSA has no basis for a finding that the presence of factors in motor carrier transportation means the public interest will be served by granting the requested exemption. SBTC
also argues that a 5-year exemption is warranted to give FMCSA time to implement its comprehensive 34 Id.

at 5.
supply chain is a critical issue that the Department of Transportation is addressing in response to disruptions caused by the COVID19
pandemic.
36 See footnote 21 above.
37 SBTC Application, at 5.
38 Id. at 14. See also May 29, 2020 comments of the Small Business in Transportation Coalition, at 3.
39 Comments of the Motor Carrier Regulatory Reform Coalition, at 2.
40 Id. at 8. JW Surety Bonds also indicates that surety premiums are consistently low. Comments of JW Surety Bonds, at 1.
41 Comments of the Motor Carrier Regulatory Reform Coalition, Affidavit of David Owen, at 1.
42 SBTC May 29 comments, at 4.
35 The
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enforcement program to enforce the broker bonding and licensing requirement.43 But SBTCs argument on this point falls short as well. SBTC fails to show how exempting a large segment of the broker industry from the bond requirement would be in the public interest merely because some entities are currently not complying. The core public interest implicated in Congresss imposition of the $75,000 financial security requirement is that motor carriers and shippers be paid in the event of broker or freight forwarder nonpayment. SBTCs exemption request, if granted, would undermine that goal.
FMCSA therefore does not find that the $75,000 financial responsibility requirement for brokers/freight forwarders is not necessary to carry out the transportation policy of section 13101. 49 U.S.C. 13541a1. Nor does FMCSA find that continued regulation under section 13906b and c is not needed to protect shippers from the abuse of market power. 49 U.S.C.
13541a2. Finally, granting the exemption requested by SBTC is not in the public interest. 49 U.S.C.
13541a3. Accordingly, SBTCs request is denied.
Meera Joshi, Deputy Administrator.
FR Doc. 202127220 Filed 121521; 8:45 am BILLING CODE 4910EXP

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Docket No. FMCSA20180278

Agency Information Collection Activities; Emergency Approval of a Revision to a Currently-Approved Collection Request: Crime Prevention for Truckers Federal Motor Carrier Safety Administration FMCSA, Department of Transportation DOT.
ACTION: Notice of request for emergency OMB approval.
AGENCY:

In compliance with the Paperwork Reduction Act PRA of 1995, this notice announces that a revision to the Information Collection Request ICR discussed below has been forwarded to the Office of Management and Budget OMB for review and emergency approval. FMCSA will no longer be offering a $25 incentive for those who complete the survey. FMCSA
is also making non-substantive changes
SUMMARY:

43 SBTC

E:FRFM16DEN1.SGM

Application, at 4.

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