76664 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

652.228–71 Workers’ Compensation 

Insurance (Defense Base Act)—Services. 

As prescribed in 628.309–70(b), insert 

the following clause:

Workers’ Compensation Insurance (Defense 

Base Act)—Services (MO/YR)

(a) This clause supplements FAR 52.228–

3. For the purposes of this clause, ‘‘covered 

contractor employees’’ includes the following 

individuals: 

(1) United States citizens or residents; 

(2) Individuals hired in the United States 

or its possessions, regardless of citizenship; 

and 

(3) Local nationals and third country 

nationals where contract performance takes 

place in a country where there are no local 

workers’ compensation laws. 

(b) The Contractor shall procure Defense 

Base Act (DBA) insurance pursuant to the 

terms of the contract between the Department 

of State and the Department’s DBA insurance 

carrier for covered contractor employees, 

unless the Contractor has a DBA selfinsurance program approved by the 

Department of Labor. The Contractor shall 

submit a copy of the Department of Labor’s 

approval to the contracting officer upon 

contract award, if applicable. 

(c) The current rate under the Department 

of State contract is [contracting officer insert 

rate] of compensation for services. 

(d) The Contractor shall insert a clause 

substantially the same as this in all 

subcontracts. The Contractor shall require 

that subcontractors insert a similar clause in 

any of their subcontracts. 

(e) Should the rates for DBA insurance 

coverage increase or decrease during the 

performance of this contract, the contracting 

officer shall modify this contract accordingly. 

(f) The Contractor shall demonstrate to the 

satisfaction of the contracting officer that the 

equitable adjustment as a result of the 

insurance increase or decrease does not 

include any reserve for such insurance. 

Adjustment shall not include any overhead, 

profit, general and administrative expenses, 

etc. 

(g) Section 16 of the State Department 

Basic Authorities Act (22 U.S.C. 2680a), as 

amended, provides that the Defense Base Act 

shall not apply with respect to such contracts 

as the Secretary of States determines are 

contracts with persons employed to perform 

work for the Department of State on an 

intermittent basis for not more than 90 days 

in a calendar year. ‘‘Persons’’ includes 

individuals hired by companies under 

contract with the Department. The 

Procurement Executive has the authority to 

issue the waivers for these Contractor 

employees. For those employees, the 

Contractor shall provide workers’

compensation coverage against the risk of 

work injury or death and assume liability 

toward the employees and their beneficiaries 

for war-hazard injury, death, capture, or 

detention. 

(End of clause) 

Alternate I. (MO/YR) If the contract is for 

construction, as prescribed in 628.309–70(a), 

substitute the following paragraph (c) for 

paragraph (c) of the basic clause:

(c) The current rate under the Department 

of State contract is [contracting officer insert 

rate] of compensation for construction.

8. Section 652.228–74 is revised to 

read as follows:

652.228–74 Defense Base Act Insurance 

Rates—Limitation. 

As prescribed in 628.309–70(c), insert 

the following provision:

Defense Base Act Insurance Rates—

Limitation (MO/YR) 

(a) The Department of State has entered 

into a contract with an insurance carrier to 

provide Defense Base Act (DBA) insurance to 

Department of State covered contractor 

employees at a contracted rate. For the 

purposes of this provision, ‘‘covered 

contractor employees’’ includes the following 

individuals: 

(1) United States citizens or residents; 

(2) Individuals hired in the United States 

or its possessions, regardless of citizenship; 

and 

(3) Local nationals and third country 

nationals where contract performance takes 

place in a country where there are no local 

workers’ compensation laws. 

(b) In preparing the cost proposal, the 

bidder/offeror shall use the following rates in 

computing the cost for DBA insurance: 

Services @ [contracting officer insert 

current rate] of compensation; or 

Construction @ [contracting officer insert 

current rate] of compensation. 

(c) Bidders/offerors shall compute the total 

compensation (direct salary plus differential, 

but excluding per diem, housing allowance 

and other miscellaneous allowances) to be 

paid to covered contractor employees and the 

cost of the DBA insurance in their bid/offer 

using the foregoing rate. The DBA insurance 

cost shall be included in the total fixed price 

or estimated cost. The Department shall 

reimburse the DBA insurance costs directly 

to the Contractor. 

(End of provision)

9. Section 652.228–76 is removed.

Corey M. Rindner, 

Procurement Executive, Bureau of 

Administration, Department of State.

[FR Doc. 04–27990 Filed 12–21–04; 8:45 am] 

BILLING CODE 4710–24–P

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety 

Administration 

49 CFR Part 371 

[Docket No. FMCSA–2004–17008] 

RIN 2126–AA84 

Brokers of Household Goods by Motor 

Vehicle

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT.

ACTION: Advance notice of proposed 

rulemaking (ANPRM); request for 

comments on petition for rulemaking. 

SUMMARY: FMCSA seeks comments on 

whether additional regulations for 

property brokers of household goods 

(HHG) in interstate or foreign commerce 

are necessary and, if so, what these 

regulations should include. We have 

granted a petition from the American 

Moving and Storage Association to 

initiate this ANPRM. HHG property 

brokers sell, offer for sale, negotiate for, 

or hold themselves out by solicitation, 

advertisement, or otherwise as selling, 

providing, or arranging for, 

transportation of HHG in interstate 

commerce by motor carriers for 

compensation. This action is necessary 

to help determine whether the general 

property broker regulations have failed 

to adequately protect consumers during 

HHG transportation.

DATES: You must submit comments 

concerning this ANPRM on or before 

February 22, 2005.

ADDRESSES: You may submit general 

comments identified by DOT Docket 

Management System Number FMCSA–

2004–17008 by any of the following 

methods: 

• Web site: http://dms.dot.gov.

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number for this potential regulatory 

action. Note that all comments received 

will be posted without change to

http://dms.dot.gov, including any 

personal information provided. Please 

see the Privacy Act heading for further 

information.

FOR FURTHER INFORMATION CONTACT: Mr. 

Jim Keenan, (202) 385–2400, 

Commercial Enforcement Division (MC–

ECI), FMCSA, 400 Seventh Street, SW., 

Washington, DC 20590.

SUPPLEMENTARY INFORMATION: Docket:

For access to the docket to read

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76665

1HHG brokers are not themselves HHG motor 

carriers (persons providing motor vehicle 

transportation of HHG) or HHG freight forwarders. 

HHG freight forwarders are persons holding 

themselves out to the general public (other than as 

motor carriers) to provide transportation of HHG, 

unaccompanied baggage, or used automobiles for 

compensation. In the ordinary course of an HHG 

freight forwarder’s business, it: 

(A) Assembles and consolidates, or provides for 

assembling and consolidating, shipments and 

performs or provides for break-bulk and 

distribution operations of the shipments; 

(B) Assumes responsibility for the transportation 

from the place of receipt to the place of destination; 

and 

(C) Uses for any part of the transportation motor 

carriers or water carriers (persons providing water 

transportation for compensation) subject to 

jurisdiction under subtitle IV of title 49 of the ICC 

Termination Act of 1995, Pub. L. 104–88, December 

29, 1995, 109 Stat. 803.

background documents or comments 

received, go to http://dms.dot.gov at any 

time or to Room PL–401 on the plaza 

level of the Nassif Building, 400 

Seventh Street, SW., Washington, DC, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or signing the comment, 

if submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (65 FR 

19477). This statement is also available 

at http://dms.dot.gov.

History of Our Property Broker 

Regulations 

We and our predecessor agencies, the 

Interstate Commerce Commission (ICC) 

and Federal Highway Administration, 

have regulated property brokers for 

many years. The ICC decided on May 

16, 1949 (Ex Parte MC–39 ‘‘Practices of 

Property Brokers,’’ 49 M.C.C. 277, at 

286) that it was necessary to regulate all 

property brokers, including HHG 

brokers 1, in interstate or foreign 

commerce. In that proceeding, the ICC 

decided it was unnecessary to regulate 

HHG brokers separately from general 

freight brokers. 

The Motor Carrier Safety 

Improvement Act of 1999, Pub. L. 106–

159, December 9, 1999, 113 Stat. 1748, 

in establishing FMCSA, granted to us 

continued regulatory oversight of the 

property broker regulations. 

Brokers’ Increasingly Significant Role 

Brokers generally, and HHG brokers 

in particular, have played an 

increasingly significant role over the last 

26 years in the transportation industry. 

Their role, when executed properly, is 

that of an arranger of transportation. 

This role is very helpful to the small 

commercial shipper, and to the 

unsophisticated consumer that is 

shipping HHG. However, since Congress 

substantially deregulated the motor 

carrier, broker, and freight forwarder 

industry through the ICC Termination 

Act of 1995, Pub. L. 104–88, December 

29, 1995, 109 Stat. 803 (ICCTA), FMCSA 

has received complaints that a segment 

of the industry may be engaging in 

unscrupulous business practices which 

defraud motor carriers as well as 

consumers. The Internet has become a 

very convenient medium that allows 

HHG brokers to expand their customer 

base by advertising their services to a 

wider range of customers. News media 

have reported that many consumers 

now use the Internet to seek the best 

possible prices for all of their consumer 

purchases, including transportation of 

HHG. 

Many of the complaints the agency 

receives involve HHG brokers who 

mislead consumers with lures of 

inexpensive transportation charges. In a 

typical case, the HHG broker enters into 

a contract with the consumer, takes a 

sizeable deposit, and arranges to have a 

motor carrier handle the shipment. 

When the shipper’s goods are in the 

possession of the carrier, the carrier 

then demands additional freight 

charges. The complaints we receive 

show when problems between the 

consumer and motor carrier arise, the 

HHG broker disavows any responsibility 

for the motor carrier’s actions, despite 

the HHG broker’s role in acquiring the 

carrier’s services on behalf of the 

shipper. FMCSA has not proven 

collusion or conspiracy between brokers 

and carriers in these cases. However, we 

believe this is an area of transportation 

that deserves further attention. We need 

to determine how extensive our role 

should be in regulating the HHG broker 

industry. 

Current Regulations 

HHG brokers must comply with the 

regulations in 49 CFR part 371, which 

apply to all regulated property brokers. 

We summarize these regulations below. 

49 CFR Part 365—Rules Governing 

Applications for Operating Authority 

A broker must register with us in 

accordance with part 365. 

49 CFR Part 366—Designation of 

Process Agent 

A broker must file designations of 

persons upon whom court process may 

be served. Every broker must make a 

designation for each State in which its 

offices are located or in which contracts 

will be written. 

49 CFR Part 387 Subpart C—Surety 

Bonds and Policies of Insurance for 

Motor Carriers and Property Brokers 

A broker must have a surety bond or 

trust fund in effect for $10,000. The 

FMCSA will not issue a property broker 

license until a surety bond or trust fund 

for the full limits of liability prescribed 

is in effect. The broker license will 

remain valid or effective only as long as 

a surety bond or trust fund remains in 

effect and will ensure a minimum level 

of financial responsibility for the broker. 

49 CFR 371.3 Records To Be Kept by 

Brokers 

A broker must keep a record of each 

of its transactions, and keep the records 

for three years. Each party to a brokered 

transaction has the right to review the 

record of the transaction applicable to 

them. For example, motor carriers 

accepting transportation shipments from 

brokers have the right to review any of 

the required documents retained by 

brokers. Shippers also are entitled to 

examine broker records containing the 

motor carrier’s address and USDOT 

number. Brokers may keep master lists 

of consignors and the address and 

registration number of the motor carrier, 

rather than repeating this information 

for each transaction. Each transaction 

record must show: 

(1) The name and address of the 

consignor; 

(2) The name, address, and 

registration number of the originating 

motor carrier; 

(3) The bill of lading or freight bill 

number; 

(4) The amount of compensation 

received by the broker for the brokerage 

service performed and the name of the 

payer; 

(5) A description of any nonbrokerage service performed in 

connection with each shipment or other 

non-brokerage activity, the amount of 

compensation received for the service, 

and the name of the payer; and

(6) The amount of any freight charges 

collected by the broker and the date of 

payment to the motor carrier. 

49 CFR 371.7 Misrepresentation 

A broker must not perform or offer to 

perform any brokerage service 

(including advertising) in any name 

other than that in which FMCSA or one 

of our predecessor agencies has issued 

its registration. A broker must not, 

directly or indirectly, represent its 

operations to be that of a motor carrier. 

Any advertising must show the true 

nature of the broker role in services 

offered.

76666 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

49 CFR 371.9 Rebating and 

Compensation 

A broker must not charge or receive 

compensation from a motor carrier for 

brokerage service where: (1) The broker 

owns or has a material beneficial 

interest in the shipment; or (2) the 

broker is able to exercise control over 

the shipment because it owns the 

shipper, the shipper owns the broker or 

there is common ownership of the two. 

A broker must not give or offer to give 

anything of value to any consumer, 

consignor, or consignee (or their officers 

or employees), except inexpensive 

advertising items given for promotional 

purposes. 

49 CFR 371.10 Duties and Obligations 

of Brokers 

Where the broker acts on behalf of a 

person bound by law, or our regulation, 

as to the transmittal of bills or 

payments, the broker must also abide by 

the law or regulations which apply to 

that person. 

49 CFR 371.13 Accounting 

Each broker who engages in any other 

business must maintain accounts so that 

the revenues and expenses relating to 

the brokerage portion of its business are 

segregated from its other activities. 

Expenses that are common must be 

allocated on an equitable basis; 

however, the broker must be prepared to 

explain the basis for the allocation to us 

and the courts. 

49 CFR 375.409 May Household Goods 

Brokers Provide Estimates? 

We published an Interim Final Rule 

(IFR) applying to operations of HHG 

motor carriers on June 11, 2003 (68 FR 

35064). We developed the rule to 

improve public understanding of our 

commercial rules, and to help 

consumers understand their roles and 

responsibilities along with those of HHG 

motor carriers to prevent moving 

disputes. We inserted § 375.409 in the 

IFR in an effort to make HHG carriers 

more responsible for the actions of HHG 

brokers who provide estimates on their 

behalf. Twenty-seven years ago, the ICC 

concluded that brokers were prohibited 

from providing estimates because the 

duty to comply with the HHG 

regulations rests with the motor carrier, 

and shippers aggrieved by an act or 

omission of a broker would be 

unprotected by our regulations. In Entry 

Control of Brokers, 126 M.C.C. 476, 520 

(1977), the ICC stated:

For example, if a broker provides a c.o.d. 

[cash on delivery] shipper with an estimate 

it has made, on which the shipper relies, the 

shipper would be deprived of the protection 

of 49 CFR 1056.8(b) [now 49 CFR 

375.405(b)(8)] of the household goods 

regulations, which provides that where the 

transportation charges exceed a carrier-made 

estimate by more than 10 percent, the 

shipper must pay only 110 percent of the 

charges upon delivery and is given a period 

of 15 days following delivery to make 

payment in full. Since this protection applies 

only to carrier-made estimates, a c.o.d. 

shipper who relies upon an incorrect 

estimate of a broker will have to pay the 

carrier’s entire freight charges upon delivery, 

regardless of the extent the actual charges 

might exceed the broker’s estimate.

As we noted in the preamble to the 

IFR (June 11, 2003, 68 FR 35078), 

although brokers may not enter into 

agency agreements with HHG motor 

carriers because they are required to 

exercise discretion in allocating traffic 

among carriers, we believe it is 

permissible for a motor carrier to enter 

into a more limited type of agreement 

authorizing the broker to provide 

estimates on behalf of the motor carrier. 

Under such an agreement, the motor 

carrier must adopt the broker’s estimate 

as a carrier-issued estimate and 

incorporate it into the order for service 

and bill of lading for purposes of 

compliance with part 375, particularly 

the 110 percent rule. We believe that 

under these circumstances, the 

individual shipper would not be 

deprived of the protections provided in 

part 375 because the carrier would still 

be held accountable for complying with 

that part. However, an HHG broker may 

not issue an estimate without entering 

into such an agreement with an HHG 

motor carrier because otherwise the 

requirements of part 375 would not 

apply to the broker-issued estimate. 

Thus, the IFR authorized an HHG broker 

to provide estimates, but only if it has 

a written agreement with the carrier 

under which the carrier agrees to adopt 

the estimate as its own. 

Petition for Rulemaking 

The American Moving and Storage 

Association (AMSA) petitioned us on 

March 6, 2003, to initiate a rulemaking 

to amend 49 CFR part 371, ‘‘Brokers of 

Property,’’ by imposing specific 

requirements on HHG brokers. AMSA’s 

petition is in the docket. Title 49 U.S.C. 

subtitle IV, part B and 49 CFR 1.73 

authorize us to adopt regulations for 

property brokers of HHG in interstate or 

foreign commerce. 

AMSA asserts there are increasing 

numbers of ‘‘moving-related’’ Web sites 

hosted by unscrupulous HHG brokers, 

which have resulted in numerous 

complaints from consumers who use the 

Internet to secure the services of an 

HHG motor carrier. 

AMSA’s petition states a significant 

number of the complaints it receives 

involve the same Internet companies, 

many of which are based in Florida. 

AMSA argues the fact these companies 

are involved in moves having no 

connection to Florida as an origin or 

destination demonstrates the impact of 

the Internet on these HHG broker 

arrangements and how the Internet is 

being used to entrap unsuspecting 

consumers. AMSA states it often 

receives complaints from consumers 

who have dealt with a Florida-based 

Internet broker, who in turn arranged a 

move from a non-Florida origin to 

another non-Florida destination. AMSA 

states once these brokers establish a 

business relationship with the 

consumer, they require payment of a 

deposit of several hundred dollars or 

more, fade from the picture, and leave 

the consumer to deal with, in most 

cases, a motor carrier who has failed to 

register with FMCSA. AMSA believes 

that a significant network of 

unscrupulous HHG brokers and HHG 

motor carriers is functioning with the 

sole purpose of bilking the moving 

public by demanding charges that bear 

no relation to the legitimate costs of 

moving, or by collecting charges for 

services that are not performed. 

AMSA provided ten additional 

examples of complaints it has received 

to illustrate the nature of the problems 

being experienced by the moving 

public. The examples generally involve 

circumstances similar to the Florida 

example discussed in the previous 

paragraph. 

AMSA wants us to amend our 

regulations to: 

• Specifically name and include HHG 

brokers in 49 CFR part 371, Brokers of 

Property; 

• Require an HHG broker to identify 

itself as a broker and provide its 

location and telephone number; 

• Add a requirement for HHG brokers 

to provide consumers with 49 CFR part 

375, Appendix A, the pamphlet ‘‘Your 

Rights and Responsibilities When You 

Move;’’

• Add a requirement that an HHG 

broker must only use FMCSA-registered 

HHG motor carriers (those with a U.S. 

DOT identification number, insurance 

on file with us, and registered to 

transport HHG in interstate or foreign 

commerce); 

• Add a requirement for full written 

disclosure concerning estimates in 

advance of the move; 

• Add a requirement that the broker 

will refund consumer deposits if the 

consumer cancels the shipment; 

• Add a requirement to advise the 

consumer about the existence of the 

HHG broker’s surety bond/trust fund; 

and 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76667

• Add a requirement to report illegal 

operations of HHG carriers to us.

AMSA’s concerns include lack of 

public awareness and advertising 

practices of unscrupulous HHG brokers. 

AMSA argues that its suggested 

regulations would: 

• Fill an existing regulatory gap; and 

• Ensure that HHG brokers do not use 

the Internet as a device to avoid 

regulation. 

AMSA suggests that we consider a 

regulatory solution applying only to 

brokers of HHG. It explains that the 

primary concept underlying its 

regulatory solution is disclosure. Its 

regulatory alternative would apply 

regardless of the medium through which 

services are advertised and would 

therefore ensure that the Internet is not 

used as a device to avoid regulation. 

Suggested Definitions in Present Section 

371.2 

AMSA suggests we consider adding 

paragraphs (e) and (f), defining 

‘‘household goods broker’’ and 

‘‘individual shipper.’’ AMSA said it 

designed its definitions to mirror the 

definitions of ‘‘household goods’’ and 

‘‘brokers’’ contained in the statute, and 

the definition of ‘‘shipper’’ contained in 

the consumer protection regulations 

under 49 CFR part 375 applicable to 

HHG motor carriers. AMSA suggests we 

consider amending paragraph (c) to 

include the transportation of HHG 

within the definition of brokerage 

service. 

Suggested Section 371.14 

AMSA suggests we consider adding a 

new § 371.14 applicable only to HHG 

brokers. 

Suggested paragraph (a) would 

subject HHG brokers to both the existing 

and the new regulations. 

Suggested paragraph (b) would 

require the HHG broker to identify 

whether it has HHG broker or HHG 

motor carrier authority, and reveal its 

location and telephone number so that 

customers can communicate with a 

person. AMSA states it designed this 

paragraph to remove the cloak of 

anonymity. 

Suggested paragraph (c) would 

require HHG brokers to use only 

FMCSA-registered HHG motor carriers 

in an effort to eliminate or reduce the 

use of unauthorized carriers. AMSA 

believes this will help ensure that the 

HHG motor carrier performing service 

has insurance, offers arbitration, is a 

responsible entity in the event of a 

dispute, and otherwise is held to the 

requirements of the consumer 

protection regulations under 49 CFR 

part 375. 

Suggested paragraph (d) would 

require HHG brokers to provide the 

pamphlet, ‘‘Your Rights and 

Responsibilities When You Move’’ to 

shippers, explain HHG motor carrier 

liability for loss and damage, and advise 

consumers of the availability of 

arbitration. 

AMSA believes it is appropriate that 

the broker provide this information 

when first contacted by the consumer. 

AMSA argues our regulations presently 

require HHG motor carriers to furnish 

this information, but often times HHG 

motor carriers do not provide it. The 

overlapping requirement would serve to 

provide a safety net for consumers to 

ensure that they receive this important 

information. 

Suggested paragraphs (e), (f), (g) and 

(h) would require full written disclosure 

in advance regarding shipment charges. 

A persistent source of disputes among 

HHG motor carriers, brokers, and 

shippers involves estimates of shipment 

charges. AMSA states some estimates 

are simply inaccurate, while others are 

deliberately deceptive. AMSA believes 

this is often the case with Internet 

quotes given solely on the basis of a 

customer’s oral or electronic description 

of the goods to be transported without 

an actual physical shipment survey. 

AMSA also believes disputes arise when 

brokers do not inform individual 

shippers the estimate is not binding, 

and the actual weight of the shipment 

determines the charges or the estimate 

does not cover unanticipated services at 

delivery. AMSA states the customer is 

often simply given an oral quotation 

that HHG motor carriers subsequently 

disavow. 

AMSA believes requiring full written 

disclosure in advance of the move could 

prevent many disputes. If brokers 

disclose at the outset of the transaction 

all of the factors that could affect the 

HHG motor carrier’s charges, customers 

are less likely to claim surprise or that 

they are the subject of a bait and switch 

maneuver. Alternatively, AMSA 

believes that if the broker does not 

disclose to the customer that actual 

charges may differ from the quote, and 

the reasons why, the HHG motor carrier 

should not be authorized to collect a 

higher amount. 

Suggested paragraph (i) would 

require full disclosure of the terms 

governing deposits and forfeiture 

requirements before payment of a 

deposit. A frequent complaint AMSA 

hears from consumers involves deposits 

required to secure broker service. 

Presently, AMSA states, there is no 

prohibition against requiring a deposit. 

Inasmuch as an Internet customer can 

disappear as readily as an unscrupulous 

broker, AMSA believes it may be 

prudent to permit a deposit from a 

customer to secure the transportation 

service. By the same token, AMSA states 

if the customer cancels the request for 

service before the move, the deposit 

could be returned in varying amounts, 

depending upon how close or far in 

advance the customer provides notice of 

cancellation. In any case, AMSA 

believes brokers should disclose the 

terms governing deposits and forfeitures 

before a deposit can be demanded. 

Suggested paragraph (j) would require 

the HHG broker to advise the consumer/

shipper about the existence of its surety 

bond or trust fund agreement. Due to the 

nature of the broker’s business, AMSA 

believes unscrupulous brokers are able 

to ‘‘close shop’’ and disappear, leaving 

shippers and HHG motor carriers 

without any recourse. Accordingly, we 

require brokers to have a bond or trust 

agreement as a protective measure for 

shippers and carriers in such an event. 

See Property Broker Security For 

Protection of Public, 4 I.C.C. 2nd 358 

(1988). The AMSA suggested regulation 

would require HHG brokers to disclose 

the existence of the bond or trust 

agreement, so the consumer is aware 

there is the potential for recourse. 

Suggested paragraph (k) would 

require HHG brokers to identify and 

disclose to individual shippers AMSA’s 

suggested regulations. AMSA states 

many consumers are unaware of their 

rights and the responsibilities of service 

providers prescribed by us. AMSA 

believes this requirement would serve to 

make consumers aware of these rights 

and responsibilities. 

Suggested paragraph (l) would 

require HHG brokers to report violations 

of regulations by HHG motor carriers to 

us. AMSA believes this would enhance 

enforcement of our regulations. Some 

consumers, subjected to unlawful 

practices by HHG motor carriers failing 

to comply with, or who violate existing 

HHG regulations under 49 CFR part 375, 

do not know where or to whom such 

violations should be reported. Since 

brokers are typically the only 

independent point of contact a 

consumer may have with the service 

provider, AMSA believes it is 

appropriate to require the broker to 

report violations to us in an effort to 

improve the remedies available to 

consumers. 

Suggested paragraph (m) would 

prohibit misleading and deceptive trade 

practices. Before the ICC revised the 

regulations in 1980, the broker 

regulations imposed an affirmative duty 

on brokers to fairly protect the interests 

of their shipper customers and 

prohibited misrepresentations and false 

76668 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

2The Debt Collection Improvement Act of 1996 

[Pub. L. 104–134, Title III, Chapter 10, Sec. 31001, 

par. (s), 110 Stat. 1321–373] amended the Federal 

Civil Penalties Inflation Adjustment Act of 1990 

[Pub. L. 101–410, October 5, 1990, 104 Stat. 890)]. 

We must adjust for inflation ‘‘each civil monetary 

penalty provided by law’’ within our jurisdiction 

after having published the regulation in the Federal 

Register. The last time we made this adjustment for 

49 U.S.C. Chapter 149 was on March 31, 2003 (68 

FR 15383). Pursuant to that authority and this 

Federal Register, the inflation-adjusted civil 

penalties listed in paragraphs (a) through (g) of 

Appendix B to 49 CFR part 386 supersede the 

corresponding civil penalty amounts listed in 49 

U.S.C. chapter 149 (14901 through 14914).

promises. Former 49 CFR 1045.10 

(1978). Given the practices AMSA 

described in its petition and the 

Congressional directive to protect 

shippers in 49 U.S.C. 13904, 

Registration of Brokers, AMSA suggests 

reviving the former prohibition against 

misleading and deceptive practices. 

Further AMSA discussion and the 

text of its suggested regulations are 

contained in its petition, which is 

publicly available in docket FMCSA–

2004–17008. 

AMSA Petition Granted 

On December 11, 2003, we granted 

the AMSA petition and initiated this 

ANPRM to help determine whether the 

public, HHG brokers, motor carriers, 

and freight forwarders, as well as 

Federal and State regulatory agencies, 

believe there is sufficient need to amend 

49 CFR part 371, as AMSA requested.

Scope and Necessity of Separate 

Regulations 

We request public comments 

regarding the need for any further 

regulatory changes, requirements, or 

non-regulatory alternatives specifically 

for HHG brokers. We would also like 

specific comments on what effects such 

regulatory or non-regulatory alternatives 

may have in deterring illegal HHG 

broker and motor carrier activities. 

We request information on the 

economic structure of the property 

broker entities which would be subject 

to potential actions we might consider 

and may initiate in a subsequent 

regulatory action, and the effect that 

such potential actions may have on 

small property brokers. We also ask 

whether current surety bond or trust 

fund requirements are sufficient to 

ensure a minimum level of financial 

responsibility. 

Penalties 

Sanctions and penalties for HHG 

brokers are addressed in 49 U.S.C. 

chapter 149—Civil and Criminal 

Penalties (sections 14901 through 

14914), and 49 CFR part 386—Rules of 

Practice for Motor Carrier, Broker, 

Freight Forwarder, and Hazardous 

Materials Proceedings. Paragraph (c) of 

49 U.S.C. 14901 requires that when we 

are determining and negotiating the 

amount of a civil penalty concerning the 

transportation of HHG, we are to take 

into account the degree of culpability, 

any history of such prior conduct, the 

degree of harm to shippers, ability to 

pay, the effect on ability to do business, 

whether the shipper has been 

adequately compensated before 

institution of the proceeding, and such 

other matters as fairness may require. 

Section 14901(d) requires a motor 

carrier or freight forwarder of household 

goods, or their receiver or trustee, that 

does not comply with any regulation 

relating to the protection of individual 

shippers, to be liable for a minimum 

penalty of $1,100 per violation.2 No 

comparable sanction or penalty relating 

to the protection of individual shippers, 

however, exists currently in 49 U.S.C. 

Chapter 149 for brokers or HHG brokers.

We seek comment on the enforcement 

strategies we should consider for any 

potential actions we may initiate in 

response to this ANPRM. We also seek 

comment on the range of appropriate 

sanctions or penalties we should 

consider for HHG brokers, alternative 

remedial actions we may consider, and 

whether we should seek Congressional 

action to extend 49 U.S.C. 14901(d) to 

property brokers, including HHG 

brokers. 

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

We have determined this ANPRM is 

a significant regulatory action within 

the meaning of Executive Order 12866 

and the Department of Transportation 

regulatory policies and procedures (44 

FR 11034, February 26, 1979). We are 

considering setting up a new regulatory 

program for HHG brokers engaged in 

interstate and foreign commerce that 

could have an affect on other 

governments, particularly States. 

However, we are not yet in a position 

to analyze fully any potential actions we 

may initiate in response to this ANPRM, 

as there is some uncertainty as to the 

size of the specific HHG broker 

population that we may affect, given 

that the agency has not developed any 

specific set of alternatives. 

There are approximately 535 active 

HHG brokers currently registered in the 

FMCSA Licensing and Insurance (L&I) 

database http://li-public.fmcsa.dot.gov/. 

There are also 1,087 HHG brokers 

included in the L&I database that are 

listed either as inactive (i.e., they have 

allowed their authority to lapse) or had 

their applications dismissed by FMCSA 

for some reason. It is unclear whether 

some portion of these 1,087 inactive or 

dismissed HHG brokers may still be 

operating illegally in some capacity 

within the HHG broker industry, and 

would thus be affected by any potential 

actions we may initiate in response to 

this ANPRM. Additionally, we believe it 

is also logical to assume that there may 

be some HHG brokers operating illegally 

who have never registered with FMCSA. 

They of course would also be affected 

by any potential actions we may initiate. 

As the AMSA petition notes, there are 

‘‘no fewer than several hundred 

websites offering to perform, arrange, or 

manage moving services in one form or 

another on behalf of consumers,’’ and 

presumably some portion of these 

entities have never registered with 

FMCSA and would therefore not appear 

in the above estimates of active and 

inactive/dismissed HHG brokers 

engaged in interstate or foreign 

commerce. Regardless, our initial 

research indicates that the population of 

HHG brokers potentially affected by any 

actions we may initiate is most likely 

less than 2,000 entities. However, to be 

sure, we are asking for comments from 

the public on our initial HHG broker 

population estimate as part of this 

ANPRM. 

FMCSA receives approximately 4,000 

to 6,000 HHG consumer complaints 

annually. We receive approximately 50 

complaints that would be classified as 

hostage loads per week. While these 

estimates include complaints against 

HHG motor carriers, the FMCSA Offices 

of Communications and Household 

Goods Enforcement believe the majority 

of these consumer complaints are 

related to HHG brokers. 

With regard to the economic impact 

on the HHG broker population, we do 

not anticipate that any potential action 

we may initiate would have a significant 

impact on the industry for two reasons. 

First, as noted above, we believe the 

total number of entities potentially 

affected is probably low. Secondly, 

while we have yet to recommend any 

specific sets of alternatives (without 

which we cannot conduct an economic 

evaluation), most appear to have a 

modest economic impact, in that they 

require greater disclosure to consumers 

or strengthen the opportunities for 

redress by the consumer. For instance, 

the AMSA petition recommends 

regulatory amendments to: 

• Specifically name and include HHG 

brokers in 49 CFR part 371; 

• Require an HHG broker to identify 

itself as an HHG broker, provide its 

location, and telephone number; 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76669

3OMB published the NAICS on April 9, 1997 (62 

FR 17288) and an amendment on January 16, 2001 

(66 FR 3826). NAICS is the North American 

international system for classifying establishments 

(individual business locations) by type of economic 

activity in Canada, Mexico, and the United States. 

Its purposes are: (1) To facilitate the collection, 

tabulation, presentation, and analysis of data 

relating to establishments, and (2) to promote 

uniformity and comparability in the presentation 

and analysis of statistical data describing the North 

American economy.

• Require an HHG broker to provide 

consumers shipping HHG with 49 CFR 

part 375, Appendix A, the pamphlet 

‘‘Your Rights and Responsibilities When 

You Move;’’

• Require an HHG broker to disclose 

estimates fully in writing in advance of 

an interstate or foreign HHG shipment; 

• Require an HHG broker to refund 

consumer deposits, if the consumer 

cancels the interstate or foreign HHG 

shipment; 

• Require an HHG broker to advise 

the consumer about the existence of the 

HHG broker’s surety bond/trust fund 

agreement; and 

• Require an HHG broker to report 

illegal operations of HHG motor carriers 

to FMCSA. 

However, because of the uncertainties 

noted above, we seek specific comment 

on the costs and benefits to the public 

and the impact potential alternatives 

would create on State governments and 

others. 

Before initiating an analysis, we must 

first determine whether there exists a 

significant failure or failings by HHG 

brokers to deal fairly and equitably with 

consumers. In particular, our analysis 

must distinguish actual failures from 

potential failures that can be resolved by 

non-regulatory means. If we find a 

significant failure by HHG brokers to 

deal fairly and equitably with 

consumers, our analysis must show how 

various alternatives will address the 

specified failures. 

Appropriateness of Alternatives to 

Federal Regulation 

Even if comments in this proceeding 

confirm the HHG broker activities 

alleged in AMSA’s petition, there may 

be no need for our regulatory 

intervention, if other means of 

addressing the HHG broker industry 

would adequately resolve the problem. 

We would like to know whether we 

should consider legislative measures 

that use economic incentives, such as 

changes in surety and trust fund 

provisions. 

Another important factor to consider 

in assessing the appropriateness of a 

Federal regulation is whether State or 

local regulation of HHG brokers may be 

an option. In this case, AMSA has stated 

Florida-based brokers are its largest 

problem. Where our regulations appear 

appropriate, our analysis will need to 

attempt to determine whether the 

burdens on interstate and foreign 

commerce arising from different State 

and local regulations, including the 

compliance costs imposed on national 

and international firms, are greater than 

the potential advantages of uniform 

application. 

We seek comments on these issues for 

our analysis of a possible notice of 

proposed rulemaking. 

Regulatory Flexibility ACT 

The Regulatory Flexibility Act (5 

U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

and Fairness Act (Pub. L. 104–121), 

(RFA) requires Federal agencies to 

analyze the impact of regulatory 

alternatives on small entities, unless we 

certify that a regulatory alternative will 

not have a significant economic impact 

on a substantial number of small 

entities, and to consider non-regulatory 

alternatives that could achieve our goal 

while minimizing the burden on small 

entities. 

We are not yet in a position to analyze 

fully any potential actions we may 

initiate in response to this ANPRM. We 

need specific information about which 

industry classification designation is 

appropriate for property brokers under 

the Office of Management and Budget’s 

(OMB) North American Industry 

Classification System (NAICS)3 for the 

United States. We use the NAICS to 

analyze small entity impacts in 

accordance with the RFA. Some of the 

questions at the end of this ANPRM 

relate directly to the RFA and our need 

for NAICS information to assist us in 

properly analyzing small property 

broker entity impacts.

We believe property brokers of HHG 

would classify and identify themselves 

generally under the NAICS code 488510 

Freight Transportation Arrangement. 

The OMB description for 488510 is 

‘‘Shipping agents, Customs brokers, 

Freight forwarding, Marine shipping 

agency, Shipping agents (freight 

forwarding)’’ as seen at: http://

www.census.gov/epcd/naics02/

naicod02.htm and http://

www.census.gov/epcd/naics02/def/

NDEF488.HTM#N4885. We request 

HHG brokers provide information on the 

NAICS code they believe best fits their 

operation. 

The Statistics of U.S. Business (SUSB) 

for 2001 estimates that 11,716 firms 

engage primarily in freight 

transportation arrangement. See 

‘‘Freight transportation arrangement 

NAICS 4885’’ on page 14 of ‘‘Employer 

Firms, and Employment by Employment 

Size of Firm by NAICS Codes, 2001’’ at: 

http://www.sba.gov/advo/stats/

us_01_n6.pdf. The U.S. Census Bureau 

provides the SUSB with data on 

employer firm size by NAICS code to 

the Small Business Administration. See 

http://www.sba.gov/advo/stats/

data.html. As we stated above, we 

believe HHG brokers would classify 

themselves as freight transportation 

arrangers, though we are asking for 

comment on this assumption. 

One challenge facing us is identifying 

HHG brokers that should be registered 

with us, but are not. Another challenge 

is estimating the benefits to consumers 

from potential alternatives we might 

consider in response to this ANPRM. 

Although our Offices of 

Communications and Household Goods 

Enforcement believe a majority of our 

consumer complaints are related to 

HHG brokers, our HHG complaint 

database has very limited information 

on the exact nature of complaints 

received. Thus, it is difficult to 

determine what percentage of 

complaints, including complaints that 

are filed with our state divisions, could 

be averted by potential actions we may 

initiate. 

We request comments from the public 

on how potential alternatives may 

impact HHG brokers. This information 

would represent a major input to 

estimating the costs of any potential 

alternatives. We also specifically request 

comments on the benefits of potential 

alternatives to prevent harm to those 

consumers who might otherwise suffer 

negative economic or other 

consequences, absent such alternative 

solutions. In addition, we ask entities 

and associations of small entities to 

identify their gross revenues. 

Executive Order 13132 (Federalism) 

We are not yet in a position to analyze 

fully any potential actions in 

accordance with the principles and 

criteria contained in Executive Order 

13132, dated August 4, 1999 (64 FR 

43255, August 10, 1999). As we have 

said earlier in this ANPRM, we and our 

predecessor agencies have regulated the 

brokering, arranging, and forwarding of 

property in interstate or foreign 

commerce, including the transportation 

of HHG, since 1949. We believe these 

issues are national in scope. Congress 

transferred the property broker 

regulations to DOT in the ICCTA. Title 

49 U.S.C. 13904 confers authority on the 

Secretary of Transportation to register 

brokers and ‘‘provide for the protection 

of shippers by motor vehicle.’’ The 

Secretary subsequently delegated this 

76670 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

authority to FMCSA under 49 CFR 

1.73(a)(5).

The primary federalism issue is 

whether 49 U.S.C. 13904 preempts State 

and local attempts to regulate the 

business practices of interstate HHG 

brokers. Although 49 U.S.C. 14501(b)(1) 

prohibits a State, a political subdivision 

of a State, an intrastate agency, or other 

political agency of two or more States to 

enact or enforce any law, rule, 

regulation, standard, or other provision 

having the force and effect of law 

relating to intrastate rates, routes, or 

services of a broker, there is no express 

preemption regarding interstate broker 

operations. 

The Carmack Amendment (June 29, 

1906, ch. 3591, § 7 (pars. 11, 12), 34 

Stat. 595) to the Interstate Commerce 

Act (Feb. 4, 1887, ch. 104, 24 Stat. 379) 

as amended, codified at 49 U.S.C. 

14706, imposes a uniform system of 

motor carrier and freight forwarder 

liability for interstate and foreign 

shipments of property. Congress 

designed Carmack to eliminate 

uncertainty resulting from potentially 

conflicting State laws. Federal and State 

courts have consistently held that 

Carmack preempts a broad range of 

State consumer protection laws 

potentially applicable to HHG motor 

carriers and freight forwarders engaged 

in interstate or foreign commerce. 

The Carmack Amendment by its terms 

applies to ‘‘carriers,’’ ‘‘motor carriers,’’

and ‘‘freight forwarders.’’ Therefore, we 

do not believe Carmack would apply to 

typical broker operations, especially 

since brokers seldom take possession of 

property. We invite comment regarding 

whether potential actions we may 

initiate in response to this ANPRM 

would preempt many, if not all, State 

regulations that directly, or indirectly 

regulate the brokerage of transportation 

of HHG subject to Federal jurisdiction. 

Consultations With State and Local 

Officials 

We specifically request comment from 

State and local officials on any 

federalism issues. In particular, we 

request comment on whether we should 

seek legislative changes to allow States 

to assist FMCSA in enforcing 

regulations applicable to HHG brokers 

engaged in interstate or foreign 

commerce. 

Because AMSA has reported the most 

problems with brokers allegedly doing 

business in Florida, we would 

specifically like to hear from State 

officials in Florida, including the 

Florida Attorney General. 

Unfunded Mandates Reform ACT of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4; 2 U.S.C. 1532) 

requires each agency to assess the 

effects of its regulatory actions on State, 

local, and tribal governments and the 

private sector. Any agency promulgating 

a final rule likely to result in a Federal 

mandate requiring expenditures by a 

State, local, or tribal government, or by 

the private sector of $100 million or 

more (adjusted for inflation) in any one 

year, must prepare a written statement 

incorporating various assessments, 

estimates, and descriptions that are 

delineated in the Act. We are not yet in 

a position to analyze fully any potential 

actions we may initiate and that may 

meet the requirements of the Unfunded 

Mandates Reform Act. We seek specific 

comments whether such impacts are 

likely for any regulatory or nonregulatory alternatives we might 

consider in our deliberations. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501–3520), a Federal 

agency must obtain approval from OMB 

for each collection of information it 

conducts, sponsors, or requires through 

regulations. 

As referenced above, part 371 requires 

a broker to keep a record of each 

transaction and to retain the records for 

a period of three years. Each party to a 

brokered transaction has the right to 

review the record of the transaction 

applicable to them. Brokers may keep 

master lists of consignors and the 

address and registration number of the 

motor carrier, rather than repeating this 

information for each transaction. Under 

section 371.3, each transaction record 

must show: 

(1) The name and address of the 

consignor; 

(2) The name, address, and 

registration number of the originating 

motor carrier; 

(3) The bill of lading or freight bill 

number; 

(4) The amount of compensation 

received by the broker for the brokerage 

service performed and the name of the 

payer; 

(5) A description of any nonbrokerage service performed in 

connection with each shipment or other 

activity, the amount of compensation 

received for the service, and the name 

of the payer; and 

(6) The amount of any freight charges 

collected by the broker and the date of 

payment to the motor carrier. 

Each broker who engages in any other 

business, must maintain accounts so 

that the revenues and expenses relating 

to the brokerage portion of its business 

are segregated from its other activities. 

Expenses that are common must be 

allocated on an equitable basis; 

however, the broker must be prepared to 

explain the basis for the allocation. 

The AMSA suggested alternative 

would also require an HHG broker to: 

(1) Identify itself, the capacity in 

which it holds itself out, and reveal its 

location and telephone number; 

(2) Use only FMCSA-registered motor 

carriers for HHG movements placed in 

interstate or foreign commerce; 

(3) Provide to shippers the pamphlet 

‘‘Your Rights and Responsibilities When 

You Move;’

(4) Explain motor carrier liability for 

loss and damage; 

(5) Advise of the availability of 

arbitration; 

(6) Require full written disclosure in 

advance regarding shipment charges;

(7) Require full disclosure of the terms 

governing deposits and forfeiture 

requirements before payment of a 

deposit; 

(8) Advise the consumer about the 

existence of its surety bond or trust fund 

agreement; 

(9) Direct the consumer to appropriate 

rights and responsibility assistance; and 

(10) Report violations of regulations 

by HHG motor carriers to us. 

We are not yet in a position to analyze 

fully any potential action we may 

initiate that may fall within the scope of 

the Paperwork Reduction Act. If we 

initiate a potential regulatory alternative 

in the future incorporating these or 

other relevant provisions, we would 

seek approval of any collection of 

information requirements to generate, 

maintain, retain, disclose, and provide 

information to, or for, the agency under 

49 CFR part 371. The information 

collected would assist individual HHG 

consumers and HHG motor carriers in 

their commercial dealings with HHG 

brokers. The collection of information 

would be used by prospective HHG 

consumers to make informed decisions 

about contracts and services to be 

ordered, executed, and settled within 

the HHG motor carrier industry. 

When the ICCTA transferred the 

current regulations to DOT, OMB 

assigned no control number to cover the 

information collection transfer of the six 

items in section 371.3. We seek specific 

comments from property brokers and 

HHG brokers concerning what 

information collection burdens they 

currently experience to comply with 

part 371, and what burdens they would 

anticipate under AMSA’s suggested 

alternative and other alternatives we 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76671

might consider for a possible 

subsequent regulatory action. 

National Environmental Policy Act 

We are not yet in a position to analyze 

fully any potential actions under the 

requirements of the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) and our 

environmental procedures Order 5610.1 

(issued on March 1, 2004, 69 FR 9680). 

We believe potential actions we may 

initiate in response to this ANPRM may 

be categorically excluded (CE) from 

further environmental documentation 

under Appendix 2 6.k. of Order 5610.1, 

which contains a categorical exclusion 

for regulations for all brokers of 

transportation by motor vehicle. In 

addition, we believe potential actions 

we may initiate would not involve 

extraordinary circumstances that would 

affect the quality of the environment. 

We are not yet in a position to analyze 

fully any potential actions under the 

requirements of the Clean Air Act, as 

amended (CAA) section 176(c), (42 

U.S.C. 7401 et seq.) and implementing 

regulations promulgated by the 

Environmental Protection Agency. We 

believe potential actions we may initiate 

would be exempt from the CAA’s 

general conformity requirement since 

they would involve policy development 

and civil enforcement activities, such as 

investigations, inspections, 

examinations, and the training of law 

enforcement personnel. See 40 CFR 

93.153(c)(2). We anticipate potential 

actions we may initiate in response to 

this ANPRM would not result in any 

emissions increase or result in 

emissions that are above the general 

conformity rule’s de minimis emission 

threshold levels because the AMSA 

suggested alternative or other potential 

actions would merely establish 

standards for arrangements between 

HHG brokers and shippers. 

We seek comment on the effect on the 

environment of the AMSA suggested 

alternative and other potential action 

alternatives. 

Executive Order 12630 (Taking of 

Private Property) 

We are not yet in a position to analyze 

fully any potential actions that may 

constitute a taking of private property or 

otherwise have taking implications 

under Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights. We seek comment on whether 

potential actions we may initiate in 

response to this ANPRM would 

constitute a taking of private property or 

otherwise have implications under 

Executive Order 12630. 

Executive Order 12372 

(Intergovernmental Review) 

We are not yet in a position to analyze 

fully any potential actions that may 

require intergovernmental consultation 

on Federal programs and activities 

under Executive Order 12372, as 

amended. We seek comment on whether 

potential actions we may initiate in 

response to this ANPRM would require 

any intergovernmental consultation on 

Federal programs and activities under 

Executive Order 12372, as amended. 

Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

We are not yet in a position to analyze 

fully any potential actions that may 

affect energy supply, distribution, or use 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We seek comment 

on whether potential actions we may 

initiate in response to this ANPRM 

would affect any regulatory or nonregulatory alternatives that may 

significantly affect energy supply, 

distribution, or use. 

Executive Order 12988 (Civil Justice 

Reform) 

We are not yet in a position to analyze 

fully any potential actions that may 

meet applicable standards in sections 

3(a) and 3(b)(2) of Executive Order 

12988, Civil Justice Reform, to minimize 

litigation, eliminate ambiguity, and 

reduce burden. We seek comment on 

whether potential actions we may 

initiate in response to this ANPRM 

would meet the standards in Executive 

Order 12988.

List of Subjects in 49 CFR Part 371 

Brokers, Motor carriers, Reporting and 

recordkeeping requirements.

Questions 

We would like the public to answer 

the following questions: 

General 

1. Is the statement/description of the 

problem accurate? Please explain. 

2. What non-regulatory actions could 

address the problem? 

3. What State or local actions could 

address the problem without our 

Federal regulatory action? 

4. Is the problem of shipper abuse by 

HHG brokers serious enough to expedite 

the rulemaking process in some way? 

Please explain. 

5. Are there other consumer 

protection models being utilized by 

other Federal or State agencies that we 

should study and/or emulate? Please 

explain.

Statistics for Cost-Benefit Analysis 

6(a). How many entities in the United 

States sell, offer for sale, negotiate for, 

or hold themselves out by solicitation, 

advertisement, or otherwise as selling, 

providing, or arranging for, HHG 

transportation by motor carrier in 

interstate or foreign commerce for 

compensation, and are not an HHG 

motor carrier or HHG freight forwarder? 

6(b). How many entities outside the 

United States sell, offer for sale, 

negotiate for, or hold themselves out by 

solicitation, advertisement, or otherwise 

as selling, providing, or arranging for, 

HHG transportation by motor carrier in 

the United States in interstate or foreign 

commerce for compensation, and are 

not an HHG motor carrier or HHG 

freight forwarder? 

7. If you are a property broker of HHG, 

under what North American Industry 

Classification System code at http://

www.census.gov/epcd/naics02/

naicod02.htm would you classify 

yourself? 

8. If you are a property broker of HHG, 

what was your gross revenue for your 

most recent fiscal year? 

Information Collection Burdens 

9. If you are a property broker, what 

are your current time and dollar 

burdens to generate, maintain, retain, 

disclose, and provide information to us 

or the public: 

9(a). For each record of every 

transaction? 

9(b). For each record for a period of 

three years? 

9(c). To review each record of each 

transaction applicable to the parties of 

each transaction? 

9(d). About your HHG broker 

operation advertising? 

9(e). About how you maintain your 

accounts so that the public may see the 

revenues and expenses relating to the 

brokerage portion of your business are 

segregated from your other activities? 

9(f). For allocating your expenses that 

are common on an equitable basis? 

10. If you are a property broker, do 

you keep master lists of consignors and 

the address and registration number of 

the motor carriers, rather than repeating 

this information for each transaction? 

11. If you are a property broker of 

HHG, what do you estimate your 

anticipated time and dollar burdens 

would be to generate, maintain, retain, 

and provide: 

11(a). Full written disclosure in 

advance regarding your shipment 

charges? 

11(b). Full disclosure of your terms 

governing deposits and forfeiture 

requirements before you demand 

payment of a deposit? 

76672 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

11(c). Information advising consumers 

about existence of your surety bond or 

trust fund agreement? 

11(d). Information directly to 

consumers about their appropriate 

rights and responsibility assistance as 

requested by AMSA? 

11(e). Information to us about 

violations of our regulations by HHG 

motor carriers, as requested by AMSA? 

11(f). Information to us and the public 

to ensure you, your employees, and 

your agents do not provide misleading 

or deceptive information? 

Federalism Implications 

12. Does 49 U.S.C. 13904 preempt 

States from enforcing consumer 

protection laws potentially applicable to 

property brokers? 

13. Have current interpretations of the 

Carmack Amendment frustrated the 

ability of States to use their consumer 

protection statutes in cases of HHG 

broker abuse? If so, will the AMSA 

suggested alternative or would a 

different alternative be helpful to your 

State? Is something else needed? 

14. What role, if any, may State or 

local enforcement agencies and 

attorneys general provide in helping 

enforce potential action alternatives? 

15. Do you believe only FMCSA 

should enforce regulations or other 

alternatives on HHG brokers? 

16. Do you believe States and local 

government agencies should be 

involved in enforcing regulations or 

other alternatives on HHG brokers? 

HHG Carrier Related Pamphlet 

17. Should HHG brokers be required 

to provide consumers with the 49 CFR 

part 375, Appendix A, ‘‘Your Rights and 

Responsibilities When You Move’’

pamphlet? 

New Regulations Specifically for HHG 

Brokers 

18. Should HHG brokers be required 

to provide refunds of consumer deposits 

if the consumer cancels the shipment? 

Why or why not? 

19. Should HHG brokers advise the 

consumer about the existence of the 

HHG broker’s surety bond or trust fund? 

Please explain. 

20. Should HHG brokers be required 

to report to us illegal operations of HHG 

motor carriers? Please explain. 

Economic Implications 

21. What are the economic issues and 

impacts of the AMSA suggested 

alternative and other alternatives that 

we should evaluate? 

Regulatory Flexibility/Small Business 

Issues 

22. What are the small entity 

economic issues and impacts of the 

AMSA suggested alternative and other 

alternatives that we should evaluate? 

Unfunded Mandates 

23. What are the potential unfunded 

mandates that may be involved in the 

AMSA suggested alternative and other 

alternatives? 

Environmental Issues 

24. What are the potential effects of 

the AMSA suggested alternative and 

other alternatives on the quality of the 

environment that we should consider in 

any potential NEPA analysis? 

Private Property Taking Issues 

25. Would the AMSA suggested 

alternative and other alternatives 

constitute a taking of private property or 

otherwise have taking implications 

under Executive Order 12630? Please 

explain.

Intergovernmental Consultation Issues 

26. Would the AMSA suggested 

alternative and other alternatives 

require any intergovernmental 

consultations on other Federal programs 

and activities under Executive Order 

12372? Please explain. 

Energy Supply Issues 

27. Would the AMSA suggested 

alternative and other alternatives affect 

any actions that significantly affect 

energy supply, distribution, or use 

under Executive Order 13211? Please 

explain. 

Financial Responsibility Issues 

28. Should HHG brokers be subject to 

more stringent surety bond/trust fund 

requirements than apply to brokers of 

general freight? If so: 

28(a). Should the surety bond/trust 

fund requirements be increased? 

28(b). What should the surety bond/

trust fund requirement amount be to 

deter sufficiently non-compliant 

behavior and protect the public? What 

would be the impact of this requirement 

on small businesses? 

Contract Issues 

29. Should HHG brokers be required 

to enter into specific contractual 

agreements for all motor carriers for 

which they provide estimates? Please 

explain. 

30. The current § 375.409 places the 

responsibility of complying with the 

estimating requirements on the HHG 

motor carrier. Should the same 

responsibility be placed upon the HHG 

broker? Please explain. 

HHG Motor Carrier Issues 

31. How will the AMSA suggested 

alternative and other alternatives affect 

HHG motor carriers? 

31(a). What additional paperwork 

burdens could reasonably be seen? 

31(b). How important are HHG 

brokers and freight forwarders to HHG 

motor carrier business operations? 

HHG Freight Forwarder Issues 

32(a). Are there any HHG freight 

forwarder problems similar to the 

problems reported by AMSA concerning 

HHG brokers? 

32(b). Should a potential action 

FMCSA may initiate consider regulatory 

requirements for HHG freight forwarder 

operations? 

HHG Motor Carrier Business Protection 

Issues 

33. How and to what extent should 

we protect HHG motor carriers from 

unscrupulous HHG broker activities? 

Enforcement Strategies 

34. Given the current e-business 

environment, what enforcement 

strategies should we use to protect HHG 

shippers from unscrupulous HHG 

broker activities? 

35. What should be the range of 

appropriate sanctions or penalties for 

violating potential actions FMCSA may 

initiate? 

36. Paragraph (d) of 49 U.S.C. 14901 

requires a motor carrier or freight 

forwarder of household goods, or their 

receiver or trustee, that does not comply 

with any regulation relating to the 

protection of individual shippers, to be 

liable for a minimum penalty of $1,100 

per violation, as adjusted for inflation. 

Should we seek Congressional action to 

extend applicability of 49 U.S.C. 

14901(d) to HHG brokers? Why or why 

not?

Issued on: December 16, 2004. 

Annette M. Sandberg, 

Administrator.

[FR Doc. 04–27933 Filed 12–21–04; 8:45 am] 

BILLING CODE 4910–EX–P