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FROM THE HILL


Association (TIA), which represents the brokerage industry, points out that the provision was part of a compromise worked out over four years of negotiations that included the full participation of the American Trucking Associations (ATA) and the Owner- Operator IndependentDrivers Association (OOIDA). Carriers and the broker 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 immediately, 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. JimCosta (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 registered 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


ROADWISE | ISSUE 5, 2014 | www.mttrucking.org 15


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 focusing solely on transportation and logistics companies, said the FMCSA’s ruling is probably correct in that the section requiring carriers to obtain broker authority is clearer than the one that might say they are exempt.


“…We’ve been advising our clients that if


they’re going to tender freight to third parties, and they’re a motor carrier, they either need to interline that freight with that third party, or they need to have broker authority,” he said. Raw commodities have been exempted


since 1958.However, once a food has been processed, it’s no longer exempt. The tools used in agriculture also are not exempt, and that can be important in an industry that easily is disrupted by unpredictable weather patterns. Tomatoes often are canned in the fields, and canning equipment is not exempt. Neither is anhydrous ammonia, a growing


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