New FMCSA Rule Targets Fraudulent Brokerage Operations
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In an effort to stem financial fraud in the broker industry, the Federal Motor Carrier Safety Administration is amending its complex regulation pertaining to financial responsibility requirements for brokers of property and freight forwarders.
In a final rule announced on Nov. 15, the agency said brokers, surety providers and financial institutions must comply with new provisions regarding immediate suspension, financial failure or insolvency, and enforcement authority beginning Jan. 16, 2025.
And by Jan. 15, 2026, brokers, surety providers and financial institutions must comply with provisions regarding assets readily available and entities eligible to provide trust funds for FMCSA Form BMC-85, Broker’s or Freight Forwarder’s Trust Fund Agreement.
“This rule will result in benefits to motor carriers,” the agency said. “FMCSA believes that most brokers operate with integrity and uphold the contracts made with motor carriers and shippers. However, a minority of brokers with unscrupulous business practices can create unnecessary financial hardship for unsuspecting motor carriers.”
Specifically, the agency laid out the rule’s requirements in five areas:
- Assets readily available: The final rule sets out a list of the acceptable asset types a BMC-85 trust may contain. FMCSA has determined that these asset types are readily available because they are stable in value and can be easily liquidated within seven calendar days of an event that triggers a payment from the trust. “FMCSA has therefore determined that cash, ILCs issued by a federally insured depository institution, and Treasury bonds will constitute the acceptable categories of assets readily available,” it said. The agency added that it considers this to be the broadest range of assets that meet the criteria set by Congress.
- Immediate suspension of broker/freight forwarder operating authority: When a broker or freight forwarder’s available financial security falls below $75,000, FMCSA may suspend its operating authority registration. FMCSA said this process would be triggered when there is a drawdown on the broker or freight forwarder’s surety bond or trust fund, “meaning when a broker or freight forwarder consents to the drawdown and the instrument value drops below $75,000; when a broker or freight forwarder does not respond to adequate notice of a claim by a surety or trust fund provider, and the surety or trust provider pays the claim, and the instrument value drops below $75,000; or when a claim is reduced to a judgment, the surety or trust fund provider pays the judgment, and the instrument value drops below $75,000.”
- Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency: The rule requires that if the surety/trustee becomes aware that a broker or freight forwarder is experiencing financial failure or insolvency, it must notify FMCSA and initiate cancellation of the financial responsibility. However, if the broker or freight forwarder subsequently cures the default, and the surety company or financial institution reinstates the bond or trust or the broker or freight forwarder obtains a new bond or trust, FMCSA will lift the suspension notice and update the FMCSA Register, the agency said.
- Enforcement authority: Calls for suspension of a surety or trust fund provider’s authority in certain circumstances. The agency will first provide notice of the suspension to the surety/trust fund provider, followed by 30 calendar days for the surety or trust fund provider to respond before a final agency decision is issued.
- Entities eligible to provide trust funds for BMC-85 filings: FMCSA removes loan and finance companies from the list of providers eligible to serve as BMC-85 trustees because this type of institution is not subject to the rigorous federal regulations applicable to chartered depository institutions or to the state regulations.
The Transportation Intermediaries Association said it welcomed the new financial regulation.
“We have been asking for this since we petitioned the agency back in 2014 on this issue,” said Chris Burroughs, vice president of government affairs for TIA. “TIA applauds the agency for moving forward quickly on this long overdue rule.”
Burroughs
Burroughs added, “3PLs and brokers are in the midst of a fraud epidemic and one aspect of that fraudulent activity centers around trust fund providers and fraudulent entities in the marketplace. By FMCSA increasing the barrier of entry into the brokerage industry by eliminating fraudulent trust fund providers, criminals and scammers will not as easily gain authority in the marketplace.”
“We are still reviewing the final rule but in general we think more can and should be done,” said Norita Taylor, a spokeswoman for the Owner-Operator Independent Drivers Association.
“We believe this rule, as called for by Congress, will protect motor carriers from unforeseen losses should a broker or forwarder be unable to fulfill their financial obligations,” American Trucking Associations spokesman Sean McNally said. “It also supports FMCSA’s efforts to protect household goods moving consumers from unscrupulous brokers. We appreciate FMCSA advancing this common-sense, congressionally mandated regulation.”
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