out over four years of negotiations that included the full participation of the American Trucking Associations (ATA) and the Owner-Operator Independent Drivers Association (OOIDA). Carriers and the bro- ker industry agreed that raising the bond from $10,000 to $75,000 would protect legitimate companies from fly-by-night operations that didn’t pay. The negotiations originally led to a
$100,000 bond amount for brokers that was included in the “Fighting Fraud in Transportation Act of 2011”, which was never passed into law. It was lowered to $75,000 and included in MAP-21. Now, thanks to contradictory language in the law, some trucking companies are having to change the way they have done business for decades. The broker provision particularly affects
two groups of haulers – those that haul food, and those that haul goods from ports. In both cases, goods must be hauled imme- diately, and carriers must be flexible. Not
surprisingly, the American Trucking Associations’ two conferences representing those groups, the Agricultural and Food Transporters Conference and the Intermodal Motor Carriers Conference, are the most outspoken in their opposition to the provision. Jon Samson, head of the Agricultural
and Food Transporters Conference, said its members expected to still be able to subcontract freight even with the bill’s passage. An amendment by Rep. Jim Costa (D-Calif.) seemed to address the problem. However, more specific language requiring carriers to register as brokers was included in the bill once it entered a conference committee, and FMCSA has decided to emphasize the more stringent language in a guidance document issued by the agency. The conflicting language, contained in
Sections 32915 and 32916 of MAP-21, is as follows: Section 32915 says:
‘‘(6) SEPARATE REGISTRATION REQUIRED.—A motor carrier may not broker transportation services unless the motor carrier has regis- tered as a broker under this chapter.’’
Conversely, Section 32916 clearly
expresses that licensed motor carriers are not subject to the broker registration:
``(2) Limitation.--This subsection does not apply to a motor carrier registered under this chapter or to an employee or bona fide agent of the motor carrier to the extent the transportation is to be provided entirely by the motor carrier, with other registered motor carriers, or with rail or water carriers.’’
Nathaniel Saylor, a partner with
Scopelitis, Garvin, Light, Hanson and Feary, the nation’s largest legal firm focus- ing solely on transportation and logistics
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