The Federal Motor Carrier Safety Administration will publish in the Federal Register on Wednesday interim guidance to provide clarification on the agency’s interpretation of the definitions of “broker” and “bona fide agents,” as well as the role of dispatch services, as it relates to broker-bonding and other regulatory requirements in trucking, an issue the agency sought public comment on earlier in the year.
While the interim guidance will be effective immediately, FMCSA is also seeking comments in response to the guidance and may issue updated guidance if comments demonstrate a need. Comments can be made here through Jan. 17.
The guidance is in response to a requirement of the Infrastructure Investment and Jobs Act (IIJA), which mandated FMCSA issue guidance clarifying the definitions of the terms. The guidance was required to take into consideration how technology has changed the nature of freight brokerage, the role of motor carriers' bona fide agents, and other aspects of trucking.
FMCSA was also required to examine the role of dispatch services, the extent to which dispatch services could be considered brokers or bona fide agents, and clarify the level of financial penalties for unauthorized brokerages otherwise operating as dispatch services and not meeting bonding and other brokerage requirements.
Fundamentally, nothing is changing with regard to the U.S. Code-codified and regulatory definitions of what constitutes a broker or a bona fide agent of a motor carrier. But the agency's guidance places new emphasis on any intermediary broker's handling of money exchanged between a shipper and a motor carrier.
For dispatch services, the interim guidance attempts something of a definition in the absence of clarity in U.S. code and in regulation, and offers two sets of factors for players in the multi-carrier dispatch-service space to consider.
Regarding how technology has changed freight brokerage, FMCSA found that brokerage “has changed immeasurably due to technology, including moving from a phone-based system to one based on the internet.” Yet those changes “do not impact the fundamental nature of brokerage” and do “not have a significant impact” on the guidance.
