15388 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 

1The 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. 

single unit of equipment from 

‘‘$16,000’’ to ‘‘$11,000’’. (73 FR 61512). 

As background, on September 6, 2007, 

FRA adjusted the ordinary maximum 

civil monetary penalty pursuant to the 

requirements of the Federal Civil 

Penalties Inflation Adjustment Act of 

1990. (72 FR 51194). As part of this 

inflation adjustment to the ordinary 

maximum civil monetary penalty, FRA 

amended footnote 1 to appendix A in 

part 232 by increasing the ordinary 

maximum civil monetary penalty to 

‘‘$16,000’’. As a result, footnote 1 read, 

in pertinent part, ‘‘[g]enerally, when two 

or more violations of these regulations 

are discovered with respect to a single 

unit of equipment that is placed or 

continued in service by a railroad, the 

appropriate penalties set forth above are 

aggregated up to a maximum of $16,000 

per day.’’ (72 FR 51197). 

The October 16, 2008 amendment was 

part of a broader change in part 232 that 

was not focused on changing the 

inflation adjustment to the ordinary 

maximum civil monetary penalty for 

violations within that part. The October 

16, 2008 amendment instituted FRA’s 

new regulations for electronically 

controlled pneumatic (ECP) brake 

systems. In the process of promulgating 

the new ECP brake systems rules, FRA 

unintentionally removed the correct 

numerical amount ‘‘$16,000’’ and reinserted the superseded numerical 

amount ‘‘$11,000’’ in its place. (73 FR 

61556–57). 

FRA’s December 30, 2008 adjustment 

of the ordinary maximum civil 

monetary penalty directed that the 

numerical amount ‘‘$16,000’’, which 

was no longer included in the text of 

footnote 1, be removed and replaced by 

the numerical amount ‘‘$25,000’’. The 

final rule published on December 30, 

2008 should have instructed that the 

numerical amount ‘‘$11,000’’ be 

removed and the numerical amount 

‘‘$25,000’’ be added in its place. FRA is 

correcting this minor error so that the 

final rule clearly conforms to FRA’s 

intent. 

List of Subjects in 49 CFR Part 232 

Penalties, Railroad safety, Reporting 

and recordkeeping requirements. 

The Final Rule 

■ In accordance with the foregoing, 49 

CFR part 232, chapter II, subtitle B of 

title 49, Code of Federal Regulations is 

corrected by making the following 

correcting amendment: 

PART 232—[AMENDED] 

■ 1. The authority citation for part 232 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20133, 20141, 20301–20303, 20306, 21301– 

21302, 21304; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

Appendix A to Part 232—[AMENDED] 

■ 2. Footnote 1 to appendix A of part 

232 is amended by removing the 

numerical amount ‘‘$11,000’’ and 

adding in its place the numerical 

amount ‘‘$25,000’’. 

Issued in Washington, DC, on March 19, 

2009. 

Jo Strang, 

Acting Deputy Administrator, Federal 

Railroad Administration. 

[FR Doc. E9–7566 Filed 4–3–09; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 373 

[Docket No. FMCSA–1997–2290] 

RIN 2126–AA25 

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:// 

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://www.regulations.gov. 

SUPPLEMENTARY INFORMATION: 

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. 

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. 


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Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 15389 

2Title 49 CFR part 1081 was redesignated as 49 

CFR part 373, subpart B, on October 21, 1996 (61 

FR 54706). 

3The 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 of 

comments. 

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. 

II. Background 

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 follows: 

* * * 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.]. 

History 

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 

(1986). 

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 commerce. 

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 change. 

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, a 


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15390 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 

substantial percentage of the comments 

to the docket focused on those 

informational discussions. 

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 § 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 categories below. 

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 § 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 § 373.201 is 

unnecessary. Part 1035 applies to rail 

and water carriers only, i.e., it does not 

include motor carriers. While 

§§ 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 consolidating station. 

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 § 373.201. MRS and 

Unisource question whether § 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 § 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 § 373.201. 

B. The Flexible Nature of Freight 

Forwarding Operations, and the Extent 

To Which This Should Be Reflected in 

§ 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 

forwarders. 

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 Lading 

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 documentation. 

FMCSA Response. There is a 

significant difference between the 

receipt and bill of lading requirements 

in § 373.101, which specify information 

that must be contained on the motor 

carrier’s receipt or bill of lading, and 

those of § 373.201 that apply to freight 

forwarders. Section 373.201 only 


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4All freight forwarders—general commodities 

and household goods—are required to register with 

FMCSA for their operating authority. 

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 

industry. 

FMCSA Response. The issuance of a 

receipt or bill of lading is a longstanding 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 § 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 of lading. 

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 otherwise. 

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 Federal law. 

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 


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15392 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 

5After 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. 

general commodities freight forwarders 

are choosing to represent themselves as 

brokers. 

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. 14706(a). 

[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 doing 

business. 

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 § 373.201.5

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 small 

entities. 

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 


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Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 15393 

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 § 373.201 to 

require that all freight forwarders issue 

receipts or bills of lading consistent 

with statutory requirements. 

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 Property Rights. 

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 

Governments) 

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 carriers. 

■ 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 § 373.201 of subpart B to 

read as follows: 


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15394 Federal Register / Vol. 74, No. 64 / Monday, April 6, 2009 / Rules and Regulations 

§ 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

[FWS–R9–MB–2008–0109; 91200–1231– 

9BPP] 

RIN 1018–AW11 

Migratory Bird Permits; Revision of 

Expiration Dates for Double-Crested 

Cormorant Depredation Orders 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule; availability of final 

environmental assessment. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, extend the expiration 

dates for two existing depredation 

orders for double-crested cormorants 

(Phalacrocorax auritus) for 5 years so 

that we can continue to authorize take 

of double-crested cormorants without a 

permit under the terms and conditions 

of the depredation orders. This action 

will continue to allow take of 

depredating double-crested cormorants 

to protect aquaculture, fish hatcheries, 

fish resources, other birds, vegetation, 

and habitats. 

DATES: This rule will be effective on 

April 30, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Terry Doyle, Division of Migratory Bird 

Management, U.S. Fish and Wildlife 

Service, 703–358–1799. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Fish and Wildlife Service 

(Service) is the Federal agency delegated 

the primary responsibility for managing 

migratory birds. This delegation is 

authorized by the Migratory Bird Treaty 

Act (MBTA) (16 U.S.C. 703 et seq.), 

which implements conventions with 

Great Britain (for Canada), Mexico, 

Japan, and the Soviet Union (Russia). 

The MBTA authorizes the Secretary of 

the Interior, subject to the provisions of, 

and in order to carry out the purposes 

of, the applicable conventions, to 

determine when, if at all, and by what 

means it is compatible with the terms of 

the conventions to allow the killing of 

migratory birds. 

The double-crested cormorant 

(Phalacrocorax auritus), a long-lived, 

colonial-nesting waterbird native to 

North America, is a migratory bird that 

is federally protected under the 1972 

amendment to the Convention for the 

Protection of Migratory Birds and Game 

Mammals, February 7, 1936, United 

States-Mexico, as amended, 50 Stat. 

1311, T.S. No. 912 and is included on 

the list of species protected by the 

MBTA at 50 CFR 10.13. Therefore, take 

of double-crested cormorants is strictly 

prohibited except as authorized by 

regulations implementing the MBTA. 

Increasing populations of the doublecrested cormorant have caused 

biological and socioeconomic resource 

conflicts. The species’ diet primarily 

consists of fish, and double-crested 

cormorant populations can decrease fish 

populations in open waters and in 

aquaculture facilities. In addition, their 

guano can kill trees, shrubs, and other 

vegetation. In November 2001, the 

Service completed a Draft 

Environmental Impact Statement (DEIS) 

on double-crested cormorant 

management. The DEIS examined six 

management alternatives for addressing 

conflicts with double-crested 

cormorants: (A) No Action, (B) 

Nonlethal Control, (C) Increased Local 

Damage Control, (D) Public Resource 

Depredation Order, (E) Regional 

Population Reduction, and (F) 

Regulated Hunting. 

On March 17, 2003, we published a 

proposed rule in the Federal Register 

(68 FR 12653) to implement the DEIS 

proposed action; Alternative D, Public 

Resource Depredation Order. A 

depredation order is a regulation that 

allows the take of specific species of 

migratory birds, at specific locations 

and for specific purposes, without a 

depredation permit. The proposed rule 

proposed revising the existing 

aquaculture depredation order to allow 

winter roost control; establishing a new 

depredation order to protect public 

resources from cormorant damages; and 

revising the Fish and Wildlife Service 

Director’s Order 27 to allow lethal take 

of double-crested cormorants at public 

fish hatcheries. 

On August 11, 2003, we published a 

notice of availability for a Final 

Environmental Impact Statement (FEIS) 

(68 FR 47603). In the FEIS, we assessed 

the impacts of the proposed depredation 

orders and determined that they would 

not significantly affect the status of the 

species. The selected action in the FEIS 

was Alternative D, Public Resource 

Depredation Order. This alternative was 

intended to enhance the ability of 

resource agencies to deal with 

immediate, localized damages caused by 

depredating double-crested cormorants 

by giving these agencies more 

management flexibility. The FEIS is 

available by contacting us at the address 

in FOR FURTHER INFORMATION CONTACT. 

Finally, on October 10, 2003, we 

published a final rule (68 FR 58022) that 

set forth regulations for implementing 

the FEIS preferred alternative: 

Alternative D (establishment of a public 

resource depredation order and revision 

of the aquaculture depredation order). 

These depredation orders reside in 

part 21 of title 50 of the Code of Federal 

Regulations (CFR), which covers 

migratory bird permits. Subpart D of 

part 21 deals specifically with the 

control of depredating birds and 

currently includes eight depredation 

orders. The depredation orders at 50 

CFR 21.47 (‘‘Depredation order for 

double-crested cormorants at 

aquaculture facilities’’) and 21.48 

(‘‘Depredation order for double-crested 

cormorants to protect public resources’’) 

allow for take of the species under the 

provisions of our 2003 EIS. When we 

issued the final rule in 2003 we 

recognized the need for more 

information about double-crested 

cormorants and their impacts on 

resources across a variety of ecological 

settings, so we established an expiration 

date for the depredation orders of April 

30, 2009, and included requirements for 

annual reporting to the Service of 

actions taken under the orders. 

The data we have gathered since the 

issuance of the final rule in 2003, taken 

in concert with data from the 2003 EIS 

suggest that the orders have not had any 

significant negative effect on doublecrested cormorant populations; data 

suggest that cormorant populations are 

stable or increasing with the orders in 

effect. Extending the orders will not, in 

the judgment of Service biologists, pose 

a significant, detrimental effect on the 

long-term viability of double-crested 

cormorant populations and will serve to 

mitigate the damage that these 

populations can cause to certain 

resources. 


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