78656 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

at the time of the application or identify 

the station that has aired or is airing the 

same or a similar programming lineup at 

the same resolutions on the same type 

of facility (individual or shared), as well 

as that station’s lineup (with 

resolutions). This Exhibit must be 

placed on the applicant’s public website 

or in the applicant’s online public 

inspection file if the station does not 

have a dedicated website, with a link 

provided in the application. This 

information is consistent both with that 

currently collected in STA applications 

and the approach identified in the Next 

Gen TV Multicast Licensing FNPRM. As 

with broadcast licenses generally, 

modifications to this license application 

or its accompanying exhibit (with 

respect to the primary or multicast 

streams) must be preceded by the filing 

and approval of a new application. 

Changes to the affiliation or content of 

a stream, or the elimination of a stream, 

however, do not implicate the concerns 

raised in this proceeding if they would 

not result in the use of additional 

capacity and if information about the 

change is easily available to the public. 

Therefore, in order to streamline this 

process for both broadcasters and the 

Commission, such changes may be 

implemented without prior Commission 

approval. They need only be reflected in 

a timely update to the Exhibit that the 

applicant makes available on its public 

website or in the applicant’s online 

public inspection file and in an email 

notice to the Chief of the Media 

Bureau’s Video Division. The new 

information collection requirements are 

contained in §§ 73.3801(f) and (i), 

73.6029(f) and (i), and 74.782(g) and (j) 

of the Commission’s rules. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2023–25305 Filed 11–15–23; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 386 and 387 

[Docket No. FMCSA–2016–0102] 

RIN 2126–AC10 

Broker and Freight Forwarder 

Financial Responsibility 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FMCSA amends the 

regulations pertaining to financial 

responsibility requirements for brokers 

of property and freight forwarders in 

five separate areas: assets ‘‘readily 

available’’; immediate suspension of 

broker/freight forwarder operating 

authority; surety or trust responsibilities 

in cases of broker/freight forwarder 

financial failure or insolvency; 

enforcement authority; and entities 

eligible to provide trust funds for 

brokers and freight forwarders, which 

are filed using Form BMC–85, Broker’s 

or Freight Forwarder’s Trust Fund 

Agreement under 49 U.S.C. 13906 or 

Notice of Cancellation of the Agreement. 

DATES: 

Effective date: This regulation is 

effective January 16, 2024. 

Expiration dates: Section 387.307T, 

which contains the current regulations 

on broker of property surety bonds or 

trust funds, expires as of January 16, 

2025. 

Section 387.307, which contains the 

revised regulations on broker of 

property surety bonds or trust funds, is 

stayed until January 16, 2025. 

Compliance dates: Brokers, surety 

providers, and financial institutions 

must comply with the provisions 

regarding immediate suspension, 

financial failure or insolvency, and 

enforcement authority on January 16, 

2025. 

Brokers, surety providers, and 

financial institutions must comply with 

the provisions regarding assets readily 

available and entities eligible to provide 

trust funds for Form BMC–85 trust fund 

filings on January 16, 2026. 

Petition submittal date: Petitions for 

reconsideration of this final rule must 

be submitted to the FMCSA 

Administrator no later than December 

18, 2023. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jeffrey L. Secrist, Chief, Registration, 

Licensing, and Insurance Division, 

Office of Registration, FMCSA, 1200 

New Jersey Avenue SE, Washington, DC 

20590–0001, (202) 385–2367, 

Jeff.Secrist@dot.gov. If you have 

questions on viewing or submitting 

material to the docket, call Dockets 

Operations at (202) 366–9826. 

SUPPLEMENTARY INFORMATION: FMCSA 

organizes this final rule as follows: 

I. Availability of Rulemaking Documents 

II. Executive Summary 

A. Summary of Major Provisions 

B. Costs and Benefits 

III. Abbreviations 

IV. Legal Basis for the Rulemaking 

V. Discussion of Proposed Rulemaking and 

Comments 

A. Proposed Rulemaking 

B. Comments and Responses 

1. Assets Readily Available 

2. Immediate Suspension of Broker/Freight 

Forwarder Operating Authority 

3. Surety or Trust Responsibility in Case of 

Broker/Freight Forwarder Financial 

Failure or Insolvency 

4. Enforcement Authority 

5. Entities Eligible To Provide Trust Funds 

for Form BMC–85 Trust Fund Filings 

6. Proposed Changes to the Regulatory Text 

7. Implementation Timeline 

8. Out of Scope Comments 

VI. Discussion of the Final Rule 

A. Assets Readily Available 

B. Immediate Suspension of Broker/Freight 

Forwarder Operating Authority 

C. Surety or Trust Responsibility in Case of 

Broker/Freight Forwarder Financial 

Failure or Insolvency 

D. Enforcement Authority 

E. Entities Eligible To Provide Trust Funds 

for Form BMC–85 Trust Fund Filings 

VII. Section-by-Section Analysis 

VIII. Severability 

IX. Regulatory Analyses 

A. E.O. 12866 (Regulatory Planning and 

Review), E.O. 13563 (Improving 

Regulation and Regulatory Review), E.O. 

14094 (Modernizing Regulatory Review), 

and DOT Regulatory Policies and 

Procedures 

B. Congressional Review Act 

C. Regulatory Flexibility Act (Small 

Entities) 

D. Assistance for Small Entities 

E. Unfunded Mandates Reform Act of 1995 

F. Paperwork Reduction Act (Collection of 

Information) 

G. E.O. 13132 (Federalism) 

H. Privacy 

I. E.O. 13175 (Indian Tribal Governments) 

J. National Environmental Policy Act of 

1969 

I. Availability of Rulemaking 

Documents 

To view any documents mentioned as 

being available in the docket, go to 

https://www.regulations.gov/docket/ 

FMCSA-2016-0102/document and 

choose the document to review. To view 

comments, click this final rule, then 

click ‘‘Browse Comments.’’ If you do not 

have access to the internet, you may 

view the docket online by visiting 

Dockets Operations at U.S. Department 

of Transportation, 1200 New Jersey 

Avenue SE, Washington, DC 20590– 

0001, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. To be sure someone is there to 

help you, please call (202) 366–9317 or 

(202) 366–9826 before visiting Dockets 

Operations. 

II. Executive Summary 

A. Summary of Major Provisions 

This final rule modifies the following 

five regulatory areas relating to broker 

and freight forwarder financial 

responsibility: 


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1The FMCSA Register is available at: https://lipublic.fmcsa.dot.gov/LIVIEW/pkg_menu.prc_menu. 

Assets Readily Available. In the 

Moving Ahead for Progress in the 21st 

Century Act (Pub. L. 112–141, 126 Stat. 

405, 822, MAP–21), Congress mandated 

that broker/freight forwarder trust funds 

consist of ‘‘assets readily available to 

pay claims without resort to personal 

guarantees or collection of pledged 

accounts receivable,’’ (49 U.S.C. 

13906(b)(1)(C), (c)(1)(D)). The Agency 

adopts a definition of assets readily 

available that both implements the 

statutory requirement and is reasonable 

for the Agency to administer. 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 7 calendar days of an 

event that triggers a payment from the 

trust. 

Immediate Suspension of Broker/ 

Freight Forwarder Operating Authority. 

Pursuant to this final rule, when a 

broker or freight forwarder’s available 

financial security falls below $75,000, 

FMCSA may suspend its operating 

authority registration. A broker’s or 

freight forwarder’s ‘‘available financial 

security’’ may fall below $75,000 

because a broker or freight forwarder 

consents to a drawdown, or if a broker 

or freight forwarder does not respond to 

a valid notice of claim from a surety or 

trust provider, or if a claim against the 

broker or freight forwarder is converted 

to a judgment. If the available financial 

security falls below $75,000 and the 

broker or freight forwarder does not 

replenish funds within 7 calendar days 

after notice from FMCSA, the Agency 

will issue a notification of suspension of 

operating authority to the broker or 

freight forwarder. The Agency intends 

to use its forthcoming Unified 

Registration System (URS) platform to 

receive information from surety 

providers, trustees, brokers, and freight 

forwarders and to administer FMCSA’s 

responsibilities regarding immediate 

suspension of operating authority 

registration. 

Surety or trust responsibilities in 

cases of broker/freight forwarder 

financial failure or insolvency. FMCSA 

defines financial failure or insolvency as 

any payment made or other default 

pursuant to § 387.307(e)(1), the 

regulatory provision that addresses the 

situations under which a broker or 

freight forwarder’s operating authority 

may be immediately suspended, which 

the broker or freight forwarder does not 

cure in accordance with § 387.307(e)(5) 

or (6). This 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 cancelation of the financial 

responsibility. FMCSA will then 

publish a notice of failure in the FMCSA 

Register.1

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. 

As with the immediate suspension 

provision, FMCSA intends to use the 

forthcoming URS platform to receive 

information and carry out its own 

responsibilities under this provision. 

Enforcement Authority. With this 

rule, FMCSA implements the 

requirement in MAP–21 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. The Agency also adds 

monetary penalties and a statutorily 

mandated suspension in 49 Code of 

Federal Regulations (CFR) part 386, 

appendix B, for violations of the new 

requirements. 

Entities Eligible to Provide Trust 

Funds for BMC–85 Filings. In this rule, 

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 applicable to insurance 

companies. Loan and finance companies 

will now be prohibited from offering 

BMC–85 trusts unless they obtain 

certification to operate as another type 

of financial institution that remains on 

the list of eligible providers in 

§ 387.307(c). 

B. Costs and Benefits 

Brokers and freight forwarders, surety 

bond and trust fund providers, and the 

Federal Government will incur costs for 

compliance and implementation. The 

quantified costs of the rule include 

notification costs related to a drawdown 

on a surety bond or trust fund, and 

immediate suspension proceedings, 

FMCSA costs to hire new personnel, 

and costs associated with the 

development and maintenance of the 

BMC–84/85 Filing and Management 

Information Technology (IT) System. As 

shown in Table 1, FMCSA estimates 

that the 10-year cost of the rule will 

total $5.5 million on an undiscounted 

basis, $3.9 million discounted at 7 

percent, and $4.7 million discounted at 

3 percent (all in 2022 dollars). The 

annualized cost of the rule will be 

$559,971 discounted at 7 percent and 

$556,786 discounted at 3 percent. 

Ninety-eight percent of the costs will be 

incurred by the Federal Government. 

TABLE 1—TOTAL COST OF THE RULE

Year 

Undiscounted Discounted 

Brokers and 

freight 

forwarders 

Financial 

responsibility 

providers 

Federal 

govt. Total a Discounted at 7% 

Discounted 

at 3% 

2025 ........................................................................... $2,500 $3,700 $706,700 $712,900 $666,300 $692,100 

2026 ........................................................................... 2,700 4,000 526,800 533,500 466,000 502,900 

2027 ........................................................................... 2,900 4,400 526,800 534,100 436,000 488,800 

2028 ........................................................................... 3,200 4,800 526,900 534,900 408,100 475,300 

2029 ........................................................................... 3,500 5,200 527,000 535,700 381,900 462,100 

2030 ........................................................................... 3,800 5,700 527,100 536,600 357,600 449,400 

2031 ........................................................................... 4,200 6,300 527,200 537,700 334,900 437,200 

2032 ........................................................................... 4,600 6,800 527,300 538,700 313,500 425,300 

2033 ........................................................................... 5,000 7,500 527,400 539,900 293,700 413,800 


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78658 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

2 ‘‘By definition, interpleader is a suit to 

determine a right to property held by a disinterested 

third party who is in doubt about ownership and 

who deposits the property with the court so that 

interested parties can litigate ownership.’’ 

Scottrade, Inc. v. Davenport, No. CV–11–03–BLG– 

RFC, 2011 WL 153999, at *1 (D. Mont. Apr. 21, 

2011). 

3See Table 4 of the Regulatory Impact Analysis 

(RIA) which is available in the Docket for this 

rulemaking for further detail. 

4The public listening session was recorded and 

is available at: https://www.youtube.com/watch?v=

TABLE 1—TOTAL COST OF THE RULE—Continued 

Year 

Undiscounted Discounted 

Brokers and 

freight 

forwarders 

Financial 

responsibility 

providers 

Federal 

govt. Total a Discounted 

at 7% 

Discounted 

at 3% 

2034 ........................................................................... 5,500 8,200 527,500 541,200 275,100 402,700 

Total .................................................................... 38,000 56,500 5,450,700 5,545,200 3,933,100 4,749,600 

Annualized .......................................................... ...................... ............................ .................. .................. 559,971 556,786 

aTotal cost values may not equal the sum of the components due to rounding (the totals shown in this column are the rounded sum of 

unrounded components). 

This rule will result in benefits to 

motor carriers. FMCSA is aware that 

some brokers choose to withhold 

payment to motor carriers for services 

rendered. Motor carriers can then 

submit claims to the financial 

responsibility provider to receive 

payment. If the financial responsibility 

provider has received claims against an 

individual broker that exceed $75,000, 

the financial responsibility provider 

will often submit the claims to a court 

in an interpleader action 2 to determine 

how to allocate the broker bond or trust 

fund. The interpleader process can be 

costly and time consuming for motor 

carriers, and generally results in motor 

carrier claims being paid pro rata, 

depending on the number of claims 

against the broker bond or trust fund. 

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. 

FMCSA is relying on available data 

from which to draw an estimated 

percentage of how many brokers fail to 

pay motor carriers. The Agency’s best 

estimate is that approximately 1.3 

percent of brokers (totaling 

approximately 429 in 2022) 3 will 

experience a drawdown on their surety 

bond or trust fund within a given year, 

with average claim amounts of 

approximately $1,900 per claim 

submitted. Of these brokers, 18 percent 

may receive total claims in excess of 

$75,000, potentially leading to 

interpleader proceedings. Because this 

data is limited in scope, FMCSA cannot 

quantify benefits resulting from this 

rule. It is FMCSA’s intent that the 

provisions in this rule will mitigate the 

need to initiate interpleader proceedings 

and alleviate the concern caused by 

broker non-payment of claims. 

III. Abbreviations 

ANPRM Advance Notice of Proposed 

Rulemaking 

ATA American Trucking Associations 

ATA–MSC ATA Moving and Storage 

Conference 

CFR Code of Federal Regulations 

DOT Department of Transportation 

E.O. Executive Order 

FDIC Federal Deposit Insurance 

Corporation 

FMCSA Federal Motor Carrier Safety 

Administration 

FR Federal Register 

ILC Irrevocable Letters of Credit 

ITSA International Trade Surety 

Association 

MAP–21 The Moving Ahead for Progress in 

the 21st Century Act 

NAICS North American Industry 

Classification System 

NCCDB National Consumer Complaint 

Database 

NCUA National Credit Union Association 

NPRM Notice of Proposed Rulemaking 

OMB Office of Management and Budget 

OOIDA Owner-Operator Independent 

Drivers Association 

PFA Pacific Financial Association, Inc. and 

PFA Transportation Insurance & Surety 

Services 

SBA Small Business Administration 

SFAA The Surety & Fidelity Association of 

America 

TIA Transportation Intermediaries 

Association 

UMRA The Unfunded Mandates Reform 

Act of 1995 

URS Unified Registration System 

U.S.C. United States Code 

IV. Legal Basis for the Rulemaking 

In 2012, Congress enacted MAP–21 

(Pub. L. 112–141, 126 Stat. 405, 822), 

section 32918, which contained 

requirements for the financial security 

of brokers and freight forwarders in 

amendments to 49 U.S.C. 13906(b) and 

(c). Section 32918(b) of MAP–21 (note to 

49 U.S.C. 13906) directed the Secretary 

to issue regulations to implement and 

enforce the requirements under 

subsections (b) and (c) of section 13906. 

Authority to carry out and enforce these 

provisions has been delegated to the 

Administrator of FMCSA (49 CFR 

1.87(a)(5)). 

Title 49 CFR 387.403T(c), concerning 

freight forwarder surety bonds and trust 

funds, provides that the requirements 

applicable to broker of property surety 

bonds and trust funds in § 387.307 also 

apply to the surety bond or trust fund 

required of freight forwarders. 

Therefore, any time this rule and this 

preamble refer to brokers, the same 

requirements are also applicable to 

freight forwarders. 

V. Discussion of Proposed Rulemaking 

and Comments 

A. Proposed Rulemaking 

On January 5, 2023, FMCSA 

published an NPRM titled ‘‘Broker and 

Freight Forwarder Financial 

Responsibility’’ in the Federal Register 

(Docket No. FMCSA–2016–0102, 88 FR 

830). The NPRM proposed amending 

the regulations in five separate areas: 

assets readily available; immediate 

suspension of broker/freight forwarder 

operating authority; surety or trust 

responsibilities in cases of broker/ 

freight forwarder financial failure or 

insolvency; enforcement authority; and 

entities eligible to provide trust funds 

for Form BMC–85 trust fund filings. 

B. Comments and Responses 

FMCSA solicited comments for a total 

of 90 days. On March 8, 2023, FMCSA 

announced that it would be holding a 

listening session on this rulemaking and 

other broker related matters in 

conjunction with the Mid-America 

Trucking Show in Louisville, KY on 

March 31, 2023, and the Agency 

extended the public comment period 

until April 6, 2023 (88 FR 14439).4


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Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 78659 

hgyKepEyoG0. A transcript is available at: https:// 

www.regulations.gov/document/FMCSA-2016-0102- 

0434. 

5 Docket No. FMCSA–2016–0102–0178 at p. 2. 

FMCSA interprets this to mean an ILC. 

By April 6, the deadline for 

submitting responses to the NPRM, 

FMCSA received 340 unique comments, 

including Air & Expedited Motor 

Carriers Association (AEMCA), 

Airforwarders Association (AfA), the 

American Trucking Associations 

Moving and Storage Conference (ATA– 

MSC), Auto Haulers Association of 

America (AHAA), American Home 

Furnishings Alliance (AHFA), Apex 

Capital Corp, Avalon Risk Management 

Insurance Agency LLC (Avalon), 

Alliance for the Safe, Efficient and 

Competitive Truck Transportation 

(ASECTT), International Trade Surety 

Association (ITSA), Liberty National 

Financial Corporation (Liberty), 

National Association of Small Trucking 

Companies (NASTC), National Owner 

Operators Association, Owner-Operator 

Independent Drivers Association 

(OOIDA), Pacific Financial Association, 

Inc. and PFA Transportation Insurance 

& Surety Services (PFA), Pinnacle 

Financial Partners/Pinnacle Bank, 

Sompo International, Specialized 

Furniture Carriers, The Surety & 

Fidelity Association of America (SFAA), 

The Expedite Association of North 

America (TEANA), Transportation 

Intermediaries Association (TIA), 

Transportation & Logistics Council 

(T&LC), Transportation & Loss 

Prevention and Security Association 

(TLP&SA), approximately 30 private 

and family-owned businesses, and 

approximately 300 individuals. 

1. Assets Readily Available 

In the NPRM, FMCSA proposed a list 

of prohibited asset types. FMCSA also 

specified that the ability to liquidate an 

asset within 7 calendar days of the event 

that triggers a payment from the trust is 

necessary for that asset to be considered 

readily available. 

Comments: FMCSA received feedback 

from private citizens, owner-operators, 

and trade associations on this proposed 

provision. The majority of commenters 

agreed that acceptable assets should be 

issued by banks insured by the Federal 

Deposit Insurance Corporation (FDIC) 

and have the capacity to be liquidated 

within 7 calendar days. However, most 

commenters disagreed with FMCSA’s 

decision to publish only a list of 

prohibited assets. For example, the 

ATA–MSC, ITSA, TIA, and OOIDA each 

suggested that the Agency instead 

provide a list of acceptable assets, 

including those that would be 

acceptable under trusts. ATA–MSC 

stated that this would eliminate any 

ambiguity and set a standard for the 

Agency’s expectations. 

TIA expressed concern that 

fraudulent companies might ‘‘seek a 

potential asset that isn’t on the list and 

note that it is ‘readily available’ due to 

the fact it isn’t included on the Agency’s 

list of non-compliant assets.’’ Similarly, 

PFA stated that including a list of 

prohibited assets could encourage 

financial institutions to create new asset 

classes in an attempt to circumvent the 

regulations. 

PFA interpreted the proposed 

provision, in conjunction with other 

proposed provisions in the rule, as 

limiting allowable assets to cash and 

irrevocable letters of credit (ILC). 

OOIDA suggested that the only 

sufficient trust/surety funding sources 

should be cash and an ‘‘unconditional 

FDIC-insured letter of credit.’’ 5

FMCSA Response: After considering 

the comments addressing this topic, 

FMCSA determined that prescribing a 

list of allowable assets, instead of 

prohibited assets, would benefit 

stakeholders by clearly articulating what 

assets the Agency deems acceptable. 

FMCSA proposed a list of prohibited 

assets in an attempt to strike a balance 

between the needs of brokers— 

particularly small businesses—and the 

goal of protecting motor carriers and 

shippers. However, FMCSA 

acknowledges that brokers may find it 

easier to comply with the regulations if 

they know the specific asset classes 

FMCSA deems acceptable. 

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. 

FMCSA considers this to be the broadest 

range of assets that meet the criteria set 

by Congress in MAP–21. Other asset 

classes such as real estate are not 

sufficiently liquid, while stocks, nonTreasury bonds, and other securities 

involve significant risk to the investor, 

and therefore none of these asset classes 

can be considered readily available. 

FMCSA also shares commenters’ 

concerns about the potential use of 

assets that are not included in a list of 

prohibited assets, but which would 

nevertheless not meet the statutory 

mandate. FMCSA believes the listed 

asset classes will not require the Agency 

or trust fund providers to expend 

resources on continual monitoring and 

valuation to ensure the trusts remain 

compliant. 

2. Immediate Suspension of Broker/ 

Freight Forwarder’s Operating Authority 

FMCSA proposed suspending a 

broker/freight forwarder’s operating 

authority when its available financial 

security falls below $75,000 and the 

broker or freight forwarder fails to 

replenish funds within 7 calendar days. 

This process would be triggered when 

there is a drawdown on the broker or 

freight forwarder’s surety bond or trust 

fund, meaning when (1) a broker or 

freight forwarder consents to the 

drawdown and the instrument value 

drops below $75,000; (2) 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 (3) a claim is reduced to a judgment, 

the surety or trust fund provider pays 

the judgment, and the instrument value 

drops below $75,000. A surety would be 

permitted to pay a claim either with the 

consent of the broker, when the broker 

fails to respond to a notice of claim 

within 14 calendar days, or when there 

is a judgment against the broker or 

freight forwarder. 

Suggestions To Modify the Required 

Financial Security Amount 

Comments: FMCSA received over 50 

comments addressing this provision, 

including from brokers, owneroperators, and trade associations. Many 

commenters who identified as owneroperators and motor carriers expressed 

their full support for FMCSA’s proposal 

to suspend a broker or freight 

forwarder’s operating authority if they 

fail to meet the financial security 

requirements. A total of 20 individual 

commenters stated that the surety 

amount of $75,000 is too low and 

should be raised to meet inflation rates. 

The Agency received suggestions to 

raise the required amount to a minimum 

of $95,000, while others suggested 

$100,000, $250,000, or an amount 

reflecting the broker or freight 

forwarder’s quarterly revenue. The 

commenters contend that such an 

increase would prevent fraudulent 

brokers while providing drivers and 

owner-operators assurance that they 

will be compensated for their services. 

These individuals also expressed the 

view that a higher surety minimum 

would improve the chances of receiving 

a higher percentage of pro rata payment 

when such situations arise. In their 

second comment, OOIDA mentioned 

that the MAP–21 legislation had 

previously raised the bond amount, 

which did not resolve the problem of 

unscrupulous brokers stealing 


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6 Docket No. FMCSA–2016–0102–0150 at pp. 3– 

4. 

7 Docket No. FMCSA–2016–0102–0146 at p. 2. 8 Docket No. FMCSA–2016–0102–0148 at p. 3. 9 Docket No. FMCSA–2016–0102 at p. 6. 

transportation services that exceeded 

the bond minimum. 

Five commenters, including those 

who identified as brokers and small 

business owners, stated that $75,000 is 

too high and should not be 

implemented for small businesses. 

These commenters stated this minimum 

will make it challenging for them to 

start a brokerage company or to remain 

in business. One commenter proposed 

reducing the required amount to $5,000. 

FMCSA Response: As part of MAP– 

21, Congress raised the minimum 

required financial responsibility amount 

from $25,000 to $75,000 for household 

goods brokers and from $10,000 to 

$75,000 for all other brokers of property. 

The statute states that brokers ‘‘shall 

provide financial security of $75,000 for 

purposes of this subsection, regardless 

of the number of branch offices or sales 

agents of the broker’’ (49 U.S.C. 

13906(b)(3)). In the NPRM, FMCSA did 

not propose changing the financial 

responsibility requirements, and 

therefore views these comments as 

outside the scope of the proposed rule. 

Timing of When the Available Financial 

Security Falls Below the Required 

Minimum 

Comments: Many stakeholders 

commented on FMCSA’s proposal 

regarding when an entity’s available 

financial security will be considered to 

have fallen below $75,000. ITSA 

supported the triggering event being an 

actual drawdown of funds which results 

in a security balance lower than 

$75,000. Many other commenters 

expressed concerns about FMCSA’s 

proposal or opposed it entirely. 

Avalon and TIA both stated that 

FMCSA’s use of the word ‘‘or’’ in 

proposed § 387.307(e) suggested that 

sureties ‘‘are free to make an 

independent determination on valid 

claims and make payments irrespective 

of the current regulations which require 

the claimants to obtain a judgment.’’ 6

Both commenters proposed adding 

language to the regulation that permits 

immediate suspension when a broker or 

freight forwarder fails to adhere to the 

terms of its contract with the surety or 

financial institution. 

PFA opposed the concept of a 

drawdown, stating that ‘‘[m]aking a 

payment from the surety bond or trust 

fund without regard to other possible 

claims is in direct contradiction to 49 

U.S.C. 13906 9(b)(6) [sic] and violates 

the Fair Claim Practices of several state 

Departments of Insurance.’’ 7 PFA 

largely agreed with the language 

proposed by Avalon and TIA, with 

minor changes. Liberty National 

Financial Corporation (Liberty) also 

opposed limiting the definition to an 

actual drawdown, stating, ‘‘[f]rom a 

practical standpoint, if a broker creates 

an ‘inevitable’ (versus ‘actual’) 

drawdown against its BMC–85 trust 

fund, that broker should just as well be 

cancelled . . . because, when legitimate 

claims are coming in, there is no 

practical distinction between a broker 

who cannot pay, and a broker who will 

not pay, and a broker who gives the runaround, and the broker who goes 

incommunicado. . . .’’ 8

FMCSA Response: After considering 

all the comments on this issue, FMCSA 

has determined that a bond or trust fund 

should be considered to have fallen 

below $75,000 when either an actual 

drawdown occurs, or when the surety 

provider or financial institution receives 

legitimate claims that have not been 

adequately addressed by the broker and 

will inevitably result in the bond or 

trust fund falling below that amount. 

Expanding the criteria in this manner 

will allay concerns from surety 

providers and financial institutions 

about their ability to quickly notify 

FMCSA of brokers warranting 

suspension while still adhering to the 

60-day period for public advertisement 

and subsequent 30-day period for 

paying claims specified in 49 U.S.C. 

13906(b)(6). This is because surety 

providers and financial institutions will 

not be required to actually make a 

payment from the bond or trust fund 

before notifying FMCSA that the assets 

have fallen below $75,000, and will thus 

be able to continue aggregating claims 

throughout the statutory claims period. 

FMCSA did not include the language 

requested by Avalon, TIA, and PFA that 

would consider available financial 

security to fall below the minimum 

required amount when the broker or 

freight forwarder fails to adhere to the 

terms of its contract with the surety or 

financial institution, as it could 

potentially create due process concerns. 

FMCSA does not have authority to 

adjudicate such contract disputes, 

which may occur for reasons having 

nothing to do with the required 

financial security. 

Notification Processes and 

Requirements 

Comments: The Agency received 

numerous comments from trade 

organizations requesting specifics on 

when and how they will be notified if 

the status of a broker’s financial security 

changes. OOIDA suggested providing a 

clearer definition of ‘‘adequate notice’’ 

and encouraged the Agency to 

strengthen its final rule by providing 

details on how the Agency will provide 

notice that a broker’s financial security 

has fallen below the required amount. 

An individual commenter asked how 

the Agency plans to receive notification 

that a broker’s financial security status 

no longer meets the required financial 

standards. 

FMCSA Response: In response to 

these comments, FMCSA added 

provisions to the regulation delineating 

the process for surety providers or 

financial institutions to notify FMCSA 

of changes to a broker’s or freight 

forwarder’s financial security status. 

Such notification must be made in 

writing, by electronic means, within 2 

business days of either a payment from 

the bond or trust that causes the 

available financial security to fall below 

$75,000 or a determination by the surety 

provider or financial institution that 

such payment will be inevitable once 

the 60-day period for submission of 

claims has elapsed. 

FMCSA intends that surety providers 

and financial institutions will use the 

URS platform, which is currently under 

development, to provide FMCSA with 

relevant information. Brokers will be 

able to submit responses using the same 

platform. 

Timeframe To Respond to a Claim 

Comments: An anonymous 

commenter raised concerns regarding 

the proposed 7-day timeframe for 

immediate suspension and suggested 

allowing adequate time to respond to a 

claim but did not provide any 

suggestions. Another commenter 

suggested 24 hours. OOIDA proposed a 

timeframe of 5 to 10 calendar days and 

ATA–MSC suggested a timeframe of 2 

weeks. The latter explained this 

timeline would provide enough time for 

internal investigations to take place and 

prevent disruptions from occurring in 

the supply chain. 

Avalon advised that 5 business days 

would allow enough time for the trust 

or surety to ‘‘request immediate 

suspension’’ if the broker fails to 

respond to a claim. They recommended 

that suspension upon financial failure 

be triggered in the event a broker fails 

to resolve ‘‘a specified number of 

undisputed claims representing a 

percentage of the security after 30 

days.’’ 9

FMCSA Response: In the final rule, 

FMCSA is adopting a timeframe for 

brokers and freight forwarders to 


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10 Docket No. FMCSA–2016–0102–0147 at p. 2. 11 Docket No. FMCSA–2016–0102–0136 at p. 5. 

12 Docket No. FMCSA–2016–0102–0148 at p. 3. 

13 Docket No. FMCSA–2016–0102–0150 at p. 4. 

14 Docket No. FMCSA–2016–0102–0178 at p. 4. 

15 Docket No. FMCSA–2016–0102–0151 at p. 5. 

respond to a claim. After considering 

the suggestions proposed by the various 

commenters, FMCSA determined that 7 

business days is appropriate. This 

timeframe provides an adequate interval 

for a broker or freight forwarder to 

respond. In response to ATA–MSC’s 

concern that an internal investigation 

may take up to 10 business days, 

FMCSA notes that this provision sets 

the timeframe for a broker or freight 

forwarder to submit an initial response 

when notified of a claim. It does not 

prescribe a timeframe for the surety 

provider or financial institution to 

investigate and make a determination on 

the validity of the claim. However, if the 

surety provider or financial institution 

ultimately determines that the claim is 

valid and will be paid, it must then 

comply with the 2-business day 

reporting timeline described above. 

Need for Show Cause Remedies 

Comments: A commenter on behalf of 

13 stakeholders stressed the need to 

implement show cause remedies in the 

process leading up to a broker or freight 

forwarder’s operating authority 

suspension. They contend that 

documented ‘‘due process issues and 

procedural protections must be met,’’ 10

allowing the broker or freight forwarder 

to either remedy or demonstrate reasons 

for their noncompliance. The 

commenter also pointed out that this 

process will provide a degree of fairness 

and protection to victims of identity 

theft or fraud, which the commenter 

identified as a rampant problem in the 

industry. 

On the other hand, FMCSA received 

a request from the Surety & Fidelity 

Association of America (SFAA) to refine 

the language by clarifying that claimants 

would only be entitled to payment until 

the investigation period has elapsed. 

FMCSA Response: FMCSA has 

strengthened due process protections for 

brokers in this final rule. After a surety 

provider or financial institution notifies 

FMCSA that a broker or freight 

forwarder’s available financial security 

has fallen below $75,000, FMCSA will 

send written notification to the broker 

or freight forwarder and allow 7 

business days for response. If the broker 

or freight forwarder presents evidence 

that the notification from the surety 

provider or financial institution was 

sent to FMCSA in error, the available 

financial security has been restored to 

the required minimum amount, or the 

pending claims have been satisfied 

without the use of surety bond or trust 

fund assets, FMCSA may find that 

immediate suspension is not warranted. 

FMCSA will also allow brokers or 

freight forwarders to cure a default after 

a suspension has been implemented. 

Additional Requirements Requested 

Comments: FMCSA received multiple 

comments requesting the adoption of 

additional requirements following the 

suspension of a broker’s operating 

authority. ATA–MSC expressed its 

support for FMCSA’s proposal, and 

suggested additional requirements, 

‘‘such as requiring these entities to take 

down websites and advertising as well 

notifying motor carriers and shippers 

with in-progress transportation services 

of the change in their authority status, 

particularly for brokers involved in 

household goods.’’ 11

The National Owner Operators 

Association, which represents 28,000 

owner-operators, stated that brokers 

should be fined, barred, and sanctioned 

to prevent bad actors from operating. 

An individual owner-operator who 

experienced an instance of inadequate 

payment from a broker suggested 

suspension of brokers for 30 days and 

decreasing their credit rating. Another 

commenter suggested imprisoning 

brokers who fail to pay. 

FMCSA Response: FMCSA recognizes 

the adverse impact on motor carriers 

when brokers fail to pay for services 

rendered and appreciates that some 

motor carriers would like to see more 

severe sanctions put in place for such 

brokers. Except for the suspension of 

operating authority adopted in this rule, 

these suggested penalties exceed the 

Agency’s statutory authorities. 

Inconsistencies or General Concerns 

With the Suspension Provision 

Comments: Many trade organizations 

pointed to some inconsistencies in the 

broader scope of the immediate 

suspension provision and raised 

concerns that it relies on the broker to 

self-disclose bankruptcy or insolvency 

as evidence of financial failure. 

Avalon stated that the rulemaking 

will not prevent brokers from 

accumulating claims and exceeding 

their financial security, which will not 

improve the status quo for drivers and 

owner-operators. Liberty advised that 

the proposed procedure will not resolve 

the broader issue of nonpayment, as it 

will be challenging to trigger a broker or 

freight forwarder’s financial failure 

status, which may not result in the 

immediate suspension of their operating 

authority. Liberty added that ‘‘trust 

funds will continue to be expended on 

a ‘‘first come, serve served’’ basis and 

leave everyone else in the cold.’’ 12 TIA 

shared concerns that ‘‘the proposed 

change might be worse than the existing 

rules in place.’’ 13

Additionally, OOIDA inquired about 

the purpose of this statutory provision 

‘‘[i]f the broker is not considered 

insolvent upon evidence that is has 

stopped paying motor carriers.’’ 14

SFAA shared that concern ‘‘that the 

broker will continue conducting 

operations even during the solicitation 

period, which will result in increased 

claims and a corresponding reduction in 

pro rata recovery for all claimants.’’ 15

FMCSA Response: FMCSA recognizes 

that relying only on filings made 

pursuant to Title 11, United States Code 

or an equivalent state insolvency 

proceeding as evidence of financial 

failure or insolvency could prevent 

surety companies and financial 

institutions from reporting in a timely 

manner when a broker or freight 

forwarder is accumulating claims. The 

changes FMCSA made in the final rule 

to the reporting requirements for 

immediate suspensions, as discussed 

above, and to the definition of financial 

failure or insolvency, discussed below, 

will ensure that surety providers and 

financial institutions can initiate the 

immediate suspension process more 

quickly once certain conditions are met. 

This will help reduce the risk that 

brokers and freight forwarders can 

continue accumulating claims for an 

extended period. These changes also 

ensure that surety providers and 

financial institutions can continue to 

utilize the payment provisions of either 

49 U.S.C. 13906(b)(2) or (6), as 

applicable. 

Brokers who file bankruptcy 

proceedings are also covered by the 

anti-discrimination provisions in 11 

U.S.C. 525. Accordingly, FMCSA made 

changes in the final rule to specify that 

the immediate suspension procedures 

do not apply when a broker or freight 

forwarder has filed a proceeding 

pursuant to Title 11, United States 

Code, in addition to changes in the 

definition of financial failure or 

insolvency, as discussed below. FMCSA 

believes these changes remove the 

potential for conflicts between the 

Bankruptcy Code and the regulatory 

requirements. 

3. Surety or Trust Responsibility in Case 

of Financial Failure or Insolvency 

In the NPRM, FMCSA proposed to 

define the terms financial failure and 


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16 Docket No. FMCSA–2016–0102–0151 at p. 3. 

17 Docket No. FMCSA–2016–0102–0148 at p. 2. 

18The FMCSA Register is accessible at https://

www.fmcsa.dot.gov/registration/daily-fmcsaregistration-decisions-letters-certificates-permitsand-licenses. 

19The FMCSA Register is available at https://

www.fmcsa.dot.gov/registration/daily-fmcsaregistration-decisions-letters-certificates-permitsand-licenses. 

20 Docket No. FMCSA–2016–0102–0419. 

21 Docket No. FMCSA–2016–0102–0435. 

insolvency and publicly advertise, in 

accordance with 49 U.S.C. 13906(b)(6) 

and (c)(7), as well as procedures relating 

to the cancellation of a surety bond or 

trust as the result of a broker’s financial 

failure or insolvency. 

Definition of Financial Failure or 

Insolvency 

Comments: ITSA supported the 

proposed definitions of financial failure 

and insolvency and the proposed 

regulatory text for § 387.307(f). 

However, many other commenters 

opposed FMCSA’s proposal to define 

financial failure or insolvency as 

bankruptcy or state insolvency 

proceeding. These commenters, who 

included Avalon, TIA, PFA, Liberty, 

and SFAA, stated that FMCSA’s 

proposal would likely worsen the 

problem, as a significant period often 

elapses between the time a broker ceases 

paying motor carriers and the time a 

bankruptcy or insolvency proceeding 

commences. Further, in some instances 

a broker will simply move on and never 

make such a filing, and the surety or 

financial institution would be prevented 

from initiating the Form BMC–84 or 

BMC–85 cancellation process despite 

knowing that the broker is not paying 

motor carriers. 

Surety and trust providers expressed 

a need for some flexibility in making 

determinations about the solvency of 

brokers they work with. PFA noted that 

financial failures typically involve a 

broker disputing claims on invalid or 

unreasonable grounds, acknowledging 

claims but not paying them while 

continuing to aggregate additional 

claims, or booking many loads and then 

exiting the market without paying motor 

carriers. Similarly, SFAA stated, 

‘‘[o]ften, when a broker’s business is 

failing, the surety will receive a sudden 

spike in claims against the bond and 

will not receive any response from the 

broker.’’ 16

Liberty stated that ‘‘BMC–85 Trustees 

are claims managers—not merely claims 

payers. We are intermediaries, liaisons, 

and problem solvers between claimants 

and brokers.’’ 17 Liberty believes trustees 

have expertise necessary to determine 

whether a broker is in financial failure 

and/or insolvent. 

Commenters were also concerned that 

the use of a bankruptcy proceeding as 

evidence of financial failure or 

insolvency would violate the antidiscrimination provisions of 11 U.S.C. 

525, which provides that a 

governmental unit may not, among 

other actions, deny, revoke, suspend, or 

refuse to renew a license, permit, 

charter, franchise, or other similar grant 

to a person solely because the person 

has been a debtor under Title 11 or a 

bankrupt or debtor under the 

Bankruptcy Act. 

FMCSA Response: FMCSA 

appreciates commenters expressing 

detailed perspectives on this issue. After 

considering the comments, FMCSA has 

determined that, while it is necessary to 

establish an objective standard for 

determining financial failure or 

insolvency, the proposed definition 

would limit surety providers’ or 

financial institutions’ ability to protect 

motor carriers from brokers who delay 

or refuse to initiate formal bankruptcy 

or insolvency proceedings. Thus, 

FMCSA has modified the definition of 

financial failure or insolvency to allow 

surety providers or financial institutions 

flexibility to exercise their judgment 

and expertise in making such a 

determination. FMCSA also removed 

the use of a filing pursuant to Title 11, 

United States Code from the definition. 

Under the final rule, surety providers 

or financial institutions may cite 

financial failure or insolvency of the 

broker or freight forwarder as grounds 

for cancellation of a Form BMC–84 

surety bond or BMC–85 trust agreement 

when the surety provider or financial 

institution either makes a payment 

against the bond or trust fund that is not 

cured in accordance with § 387.307(e)(5) 

or (6) or expects to make a payment after 

aggregating multiple claims. FMCSA 

intends to receive this information via 

the URS. 

Failure To Report Insolvent Brokers 

Comments: A commenter inquired 

what type of action the Agency will take 

if a trust company refuses to report an 

insolvent broker or advertise for claims. 

FMCSA Response: FMCSA has the 

authority to seek specific penalties for 

violations of the relevant statutes and 

regulations under 13906(b)(7) and (c)(8). 

While any action FMCSA may take 

would depend on the specific facts and 

circumstances involved in a violation, 

nothing in this rule is intended to, nor 

would it, limit the scope of FMCSA’s 

enforcement authority. 

Cancellation Notice 

Comments: OOIDA commented on 

FMCSA’s proposal to publish 

cancellation notices in the FMCSA 

Register. It noted that the FMCSA 

Register is not ‘‘searchable or inherently 

accessible’’ and requested that such 

notice be published on FMCSA’s SAFER 

web page and the ‘‘Licensing and 

Insurance’’ web page of the broker bond 

in question. OOIDA additionally 

suggested that the Agency change its 

Licensing and Insurance web page to 

provide a link to a page on the surety’s 

or trustee’s website showing how many 

pending claims exist on a given bond. 

FMCSA Response: The FMCSA 

Register 18 provides to the public a daily 

summary of motor carrier applications 

for operating authority registration, as 

well as decisions and notices the 

Agency has issued regarding the status 

of entities operating authority. FMCSA 

acknowledges the concerns raised 

regarding the importance of cancellation 

notices being easily accessible to the 

public and, in response, has placed a 

link to the FMCSA Register in a more 

prominent location on the Agency’s 

website 19 to make it more accessible. 

FMCSA declines to include links to 

the sureties’ or trustees’ web pages, as 

they are not required to list pending 

claims on their websites. The FMCSA 

Register web page is a reliable resource 

which is updated daily to provide the 

public information related to operating 

authority registration. 

Ex Parte Communication Concerning 

This Provision 

Comment: On May 12, 2023 an 

individual informed FMCSA that the 

hypothetical situation described in their 

original comment 20 to the docket had in 

fact occurred. 

FMCSA Response: FMCSA placed an 

ex parte memo 21 in the docket for this 

rulemaking to capture this information 

and updated the registration page to 

ensure that others are also aware of the 

situation. The Agency notes that this 

rulemaking is not enforceable until the 

compliance dates listed under the DATES

section of this final rule. 

4. Enforcement Authority 

In the NPRM, FMCSA proposed to 

implement MAP–21’s provision for 

suspension of a surety provider’s 

eligibility to make filings with FMCSA 

by providing a notice of suspension to 

the surety/trust fund provider followed 

by 30 calendar days for the surety or 

trust fund provider to respond before a 

final decision is issued. FMCSA also 

proposed to add penalties in 49 CFR 

part 386, appendix B, for violations of 

the new requirements. 

Comments: FMCSA received 

approximately 50 comments on the 


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22 Docket No. FMCSA–2016–0102–0178 at p. 5. 23 Docket No. FMCSA–2016–0102–0146 at p. 2. 

24See, e.g., Introduction to Financial Services: 

The Regulatory Framework, Congressional Research 

Service, January 5, 2023, available at https://

crsreports.congress.gov/product/pdf/IF/IF11065. 

Agency’s enforcement authority over 

surety providers. Many of the comments 

received were out of scope as they 

addressed what the commenters 

perceived as a lack of provisions to 

combat fraud and implement 

transparency requirements. Two 

individual commenters opposed this 

provision urging that the Agency should 

not regulate the financial aspect of the 

trucking industry. 

ATA–MSC and TIA agreed with the 

Agency’s proposal and found the 

provisions reasonable. ITSA also agreed 

with and supported FMCSA’s proposed 

language but suggested placing it in 

§§ 387.317 and 387.415, which concern 

FMCSA’s authority to refuse to accept or 

to revoke surety bonds, insurance 

certificates, self-insurer qualifications, 

or other securities or agreements, 

instead of in § 387.307. However, if 

FMCSA were to keep the language in 

§ 387.307, ITSA recommended ensuring 

that the citation to section 13906 of the 

United States Code include both 

subsections (b) and (c), which apply to 

brokers and freight forwarders, 

respectively. 

FMCSA Response: In response to the 

comments about regulation of financial 

aspects of the trucking industry, FMCSA 

notes that this rulemaking stems from a 

Congressional mandate to implement 

certain provisions of MAP–21. FMCSA 

must, by law, regulate these aspects. In 

response to the comments about fraud 

and transparency, this rule aims to 

reduce fraud by limiting the time 

brokers can continue to accrue claims 

while experiencing financial failure or 

insolvency before their operating 

authority registration is suspended. 

These changes adopted in this rule will 

result in fewer motor carriers accepting 

loads from brokers who do not intend to 

pay. 

Regarding ITSA’s suggestion to alter 

the placement of the enforcement 

authority provision in the regulations, 

FMCSA believes that the proposed 

language fits within the scope of 

§ 387.307 and therefore declines to 

make changes to other sections of part 

387. FMCSA has revised the citation to 

section 13906 of the United States Code 

to include both subsections (b) and (c). 

Request for More Detail 

Comments: OOIDA expressed 

frustration that bad actors have been 

able to ‘‘register, conduct transactions, 

and stay in business without fear of any 

recourse against their criminal 

activity’’ 22 but agreed that these are 

necessary provisions to implement the 

MAP–21 requirements. It requested to 

see a more detailed plan demonstrating 

how FMCSA plans to take enforcement 

action. 

FMCSA Response: FMCSA is 

dedicated to ensuring the integrity of 

the trucking sector and refers incidents 

of criminal conduct to appropriate 

authorities. Criminal enforcement is 

handled by the Office of Inspector 

General and the Department of Justice. 

5. Entities Eligible To Provide Trust 

Funds for BMC–85 Filings 

In the NPRM, FMCSA proposed 

prohibiting loan and finance companies 

from serving as BMC–85 trustees. 

FMCSA received support on this 

provision from driver and motor carrier 

trade organizations, which fully agree 

that loan and finance companies should 

not serve as BMC–85 trustees. 

Assets That Can Be Used as Collateral 

Comment: PFA stated that the NPRM 

did not address the difference between 

allowable assets that the trustor can use 

as collateral and the way in which a 

trust provider can invest cash provided 

as collateral. In response to the 

proposed removal of finance lenders 

from the list of qualified financial 

institutions in § 387.307(c), PFA stated 

that ‘‘the only entity that will practically 

be able to generate a profit from issuing 

BMC–85s will be banks,’’ 23 as insurance 

companies stopped taking collateral on 

this type of surety many years ago. 

Thus, any investment the trust provider 

made using the collateral would be 

overseen by State and Federal 

regulators. 

FMCSA Response: FMCSA takes note 

of PFA’s comment that banks will be the 

only type of financial institution that 

will be able to profit from offering 

BMC–85 trust funds and acknowledges 

that the final rule may result in some 

providers ceasing to offer this service. 

However, FMCSA believes this change 

is necessary because loan and finance 

companies are not subject to similar 

levels of oversight as the other entities 

described in § 387.307(c) and such 

oversight is necessary to ensure the 

stability of the BMC–85 trust 

instrument. 

Concern About Small Businesses 

Comments: The Agency received two 

comments from 1st Security Financial 

Corporation on FMCSA’s proposed rule 

expressing its disagreement with 

disqualifying loan and finance 

companies as acceptable entities. The 

company explained this will force many 

small loan companies out of business 

and increase premiums on BMC–84 

forms. 1st Security Financial 

Corporation added that the company 

abides by the MAP–21 agreement 

instructions by vetting brokers and 

publicly advertising insolvent ones, and 

it urged the Agency to reconsider the 

provision. PFA also agreed that the 

provision would eliminate many small 

businesses and reduce ‘‘the experience 

of claims management in the industry’’ 

and the number of claims that will be 

paid. 

FMCSA Response: Consistent with the 

requirement for brokers and freight 

forwarders to maintain $75,000 in 

available assets, FMCSA determined 

that the definition of a financial 

institution should include only highly 

regulated depository institutions, 

insurance companies, or equivalent 

entities. This decision is intended to 

ensure that a broker’s or freight 

forwarder’s surety bond or trust fund 

assets remain stable, secure, and readily 

available. 

Loan and finance companies are not 

depository institutions and therefore are 

not regulated by the Federal depository 

regulators, such as the Federal Reserve, 

Office of the Comptroller of the 

Currency, the FDIC, or the National 

Credit Union Administration (NCUA), 

or an equivalent State regulator.24 They 

are also generally not subject to a level 

of State regulation comparable to 

insurance companies. As FMCSA is 

now limiting the allowable assets held 

in BMC–85 trusts to cash, ILCs issued 

by Federally insured depository 

institutions, and Treasury bonds, loan 

and finance companies are unlikely to 

be able to comply with these 

requirements. FMCSA believes the risks 

involved in allowing companies that are 

not part of highly regulated industries to 

administer BMC–85 trusts are 

incompatible with the requirement that 

the trust fund consist of assets ‘‘readily 

available to pay claims without resort to 

personal guarantees or collection of 

pledged accounts receivable’’ (49 U.S.C. 

13906(b)(1)(C)). 

While FMCSA recognizes that 

removing loan and finance companies 

from the list of eligible BMC–85 

providers may cause some of these 

companies to leave the industry, 

ensuring that all BMC–85 trust funds are 

administered by highly regulated 

institutions is a priority for the Agency 

and is necessary to carry out the 

requirements of MAP–21. This rule 

change will also more closely align 

FMCSA’s regulations with those of other 


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DOT agencies. For instance, in DOT’s 

regulations on aviation proceedings 

applicable to public charter security and 

depository agreements, a surety 

provider must be a bonding or surety 

company that is listed in Best’s 

Insurance Reports (Fire and Casualty) 

with a general policyholders’ rating of 

‘‘A’’ or better and legally authorized to 

issue bonds of that type in the State in 

which the charter originates (14 CFR 

380.34(c)(6)). A trustee must be either 

an FDIC-insured national bank 

complying with the provisions of 12 

CFR 7.7010(a) or a State bank complying 

with applicable State laws that grant 

authority to issue such agreements (14 

CFR 380.34(c)(7)). 

In Chapter 3.3.1 of this final rule’s 

RIA, FMCSA outlines the process and 

anticipated timeline for a loan and 

finance company to become an FDICinsured depository institution in order 

to continue serving as a BMC–85 

trustee. Based on that timeline, FMCSA 

has concluded that the 2-year 

implementation period for this rule is 

reasonable for loan and finance 

companies to achieve compliance if 

they wish to do so. Due to a lack of data 

on the cost of this process and the 

number of loan and finance companies 

currently serving as BMC–85 trustees, 

the Agency cannot determine how many 

loan and finance companies will choose 

to meet the additional requirements to 

remain eligible entities or, alternatively, 

will exit the market. Nothing in this rule 

prohibits loan and finance companies 

that wish to continue offering services 

to brokers and freight forwarders from 

taking the necessary steps to become an 

eligible financial institution. 

6. Proposed Changes to the Regulatory 

Text 

Comments: The Agency received 

additional requests from commenters to 

modify the regulatory text pertaining to 

§ 387.307(a), (b), (e), and (f). 

Additionally, PFA suggested adding a 

paragraph to § 387.307 outlining 

penalties for suspended brokers. 

ITSA recommended keeping the 

language in paragraph (b), which deals 

with evidence of financial security, as it 

currently exists or alternately moving it 

to paragraph (a), which currently 

concerns the security necessary. ITSA 

also pointed to a typographical error in 

the proposed rule mentioning the 

removal of paragraph (c)(8); it believes 

the Agency intended to remove 

paragraph (c)(7). 

Avalon and PFA both proposed 

changes to paragraphs (e) and (f), which 

would allow surety providers and 

trustees to initiate the immediate 

suspension process more quickly for 

brokers and freight forwarders who are 

accruing claims. 

OOIDA proposed extensive changes to 

the structure and organization of 

§ 387.307, including: 

• Security—(a)(1); (d); 

• Cancellation of Security and 

Revocation of Registration—(f)(1)(B); 

• Public Notice—(f)(3)(A); 

• Sureties and Trustees: The financial 

failure or insolvency of a broker— 

(g)(5)(a); (g)(5)(b); 

• Claim Processing: First review of 

claim—(h)(3)(A)(i); (h)(3)(A)(ii); 

• Claim Processing: Second review of 

claims—(h)(5)(A); (h)(5)(C); and 

• Notice—(h)(6). 

FMCSA Response: FMCSA agrees 

with ITSA that it is important to retain 

the language previously in paragraph (b) 

regarding the manner in which brokers 

and freight forwarders must provide 

evidence of security and the content of 

security agreements. In the final rule, 

FMCSA has moved this language to 

paragraph (a). 

ITSA also accurately identified that 

FMCSA intended to remove paragraph 

(c)(7), not paragraph (c)(8). This 

typographical error has been corrected 

in the final rule. 

FMCSA made several changes to the 

text of § 387.307(e) and (f) in response 

to comments received. FMCSA believes 

the text of the final rule both addresses 

commenters’ concerns and implements 

the desire of Congress to expeditiously 

suspend brokers who are accruing 

claims against their surety bonds or 

trust funds. 

While FMCSA appreciates the time 

and effort OOIDA spent in proposing 

changes to § 387.307, the Agency 

believes the structure and content of the 

regulatory changes implemented by this 

final rule is clear, well-organized, and 

fully addresses the intended scope of 

the rulemaking. The manner in which 

OOIDA has suggested restructuring this 

section goes beyond the changes 

FMCSA proposed in the NPRM, and 

FMCSA prefers to retain the current 

structure of the regulation to the extent 

possible. 

In addition to the structural changes, 

OOIDA also proposes to set out in 

precise detail the procedures surety 

providers and trustees must follow 

when processing claims, including the 

responses required of brokers. As 

discussed above, the changes FMCSA 

made to paragraphs (e) and (f) of the 

final rule are designed to set certain 

parameters around claim processing, but 

the Agency does not believe the process 

needs to be regulated at the level of 

detail OOIDA suggests. OOIDA also 

proposed requiring all surety providers 

and trustees to maintain a public web 

page for each surety bond or trust fund, 

which would contain specified types of 

information, and to notify FMCSA of the 

correct URL address of the web page 

and any changes to that address. 

However, MAP–21 did not require 

FMCSA to implement this type of 

requirement, and the Agency believes 

administering such a provision would 

be unduly burdensome on sureties, trust 

fund providers, and Agency personnel. 

FMCSA therefore declines to make the 

changes OOIDA suggested. 

7. Implementation Timeline 

Comments: FMCSA received feedback 

on the 3-year implementation timeline 

proposed in the NPRM. ITSA disagreed 

that the industry needs that much time 

to comply with the regulatory changes, 

as brokers covered by a loan or finance 

company ‘‘can easily transition to a 

surety company or other form of 

approved financial institution.’’ They 

proposed that FMCSA consider 3 

months as a reasonable timeframe. TIA 

agreed that a 3-year period would be too 

long and suggested 12 months instead. 

FMCSA Response: FMCSA 

acknowledges the comments it received 

regarding the implementation period 

pertaining to this rule. After careful 

consideration, the Agency determined 

that reducing the 3-year implementation 

period would be beneficial to 

stakeholders while still providing the 

industry sufficient time to comply with 

the financial requirements. The Agency 

has decided to reduce the 

implementation period from 3 years to 

1 year for the immediate suspension, 

financial failure or insolvency, and 

enforcement authority provisions of this 

rulemaking. FMCSA also reduces the 

implementation period from 3 years to 

2 years for the assets readily available 

and entities eligible to provide trust 

funds for Form BMC–85 trust fund 

filings provisions. 

8. Out of Scope Comments 

Business Practices 

Comments: FMCSA received more 

than 150 comments concerning issues 

beyond the scope of the NPRM. Most of 

these comments concerned common 

operational procedures or business 

practices and relationships between 

brokers and motor carriers. 

These commenters stated that brokers 

often behave in various fraudulent ways 

and are not currently sufficiently 

regulated by DOT or FMCSA. In 

particular, commenters mentioned those 

who operate under fake/stolen business 

information, as multiple businesses 

with different operating authority 

numbers. Many commenters mentioned 


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25The NCCDB is available at https://nccdb.fmcsa.

dot.gov/nccdb/home.aspx#. 

broker actions the commenters viewed 

as predatory and, accordingly, favored 

FMCSA setting limits on rates brokers 

could charge. Multiple commenters at 

the March 2023 listening session 

mentioned charge backs and claims 

from brokers after loads were delivered. 

A common complaint in the public 

comments was ‘‘double-brokering’’ of 

loads. This term is commonly used to 

refer to a situation where a motor carrier 

accepts a load from a broker and then 

transfers the load without the shipper’s 

or original broker’s knowledge to 

another motor carrier who actually 

delivers the load. In many instances, the 

motor carrier who completes the load 

does not receive payment for their 

services, as the original broker pays the 

motor carrier with whom it has 

contracted and believes the transaction 

is complete, but that motor carrier does 

not pay the second motor carrier with 

whom it has subcontracted. 

FMCSA Response: FMCSA 

appreciates commenters for bringing 

these issues to the Agency’s awareness 

and hopes the commenters will stay 

engaged, including by continuing to 

inform the Agency of such issues. 

However, these issues are outside of the 

scope of this rulemaking, as they do not 

specifically pertain to the issues 

presented in the NPRM. FMCSA 

therefore declines to modify the final 

rule based upon these comments. 

Regarding the accusations of fraud, 

FMCSA is aware of increasing concerns 

in this area and is actively examining 

approaches to address the problems, 

including potential rule changes in 

other areas. FMCSA and DOT are also 

looking at new tools and practices to 

better enforce existing regulations 

against companies engaging in fraud. 

The Agency encourages drivers affected 

by deceptive business practices or 

similar concerns to file a complaint 

against the company involved on the 

National Consumer Complaint Database 

(NCCDB) website.25

Other Out of Scope Comments 

Comments: Other out of scope 

comments included many complaints 

about specific brokers or brokers being 

foreign-owned and operated. Many 

individuals commented concerning a 

planned Agency rulemaking regarding 

transparency in the broker industry. 

FMCSA Response: FMCSA encourages 

these commenters to submit complaints 

regarding a specific broker or company 

to FMCSA via the NCCDB website as 

detailed earlier. FMCSA requests that 

commenters interested in the issue of 

br‘oker transparency submit comments 

to that rulemaking when it is published. 

VI. Discussion of the Final Rule 

A. Assets Readily Available 

As discussed above, FMCSA modified 

this final rule to provide an explicit list 

of acceptable asset types, rather than the 

list of prohibited assets included in the 

NPRM. This list of acceptable assets will 

provide clarity to brokers, freight 

forwarders, surety providers, and 

financial institutions about the specific 

assets that meet the criteria set by 

Congress in MAP–21, as they are both 

stable and able to be made liquid within 

7 calendar days. The final rule will also 

prevent the use of new asset types that 

would not be specifically included on a 

list of prohibited assets but would not 

meet the criteria FMCSA used to 

determine whether an asset type is 

allowable. In this rule, acceptable assets 

to be included in a trust fund are 

limited to cash, irrevocable letters of 

credit issued by Federally insured 

depository institutions, and Treasury 

bonds. 

Compliance with this provision will 

be required on January 16, 2026. 

B. Immediate Suspension of Broker/ 

Freight Forwarder Operating Authority 

Many comments on this provision 

requested more detail on the 

circumstances and process leading up to 

a broker or freight forwarder’s 

suspension. A broker or freight 

forwarder’s operating authority will be 

suspended when their available 

financial security falls below $75,000 

and the broker or freight forwarder fails 

to replenish funds within 7 calendar 

days. This final rule outlines 

information about the triggers and roles 

of surety or financial institutions and 

FMCSA, including how surety providers 

issuing a BMC–84 form or financial 

institutions issuing a BMC–85 Form 

must notify FMCSA when a broker’s 

financial responsibility falls below the 

required minimum and is not 

replenished in a timely manner. 

Compliance for this provision will be 

required on January 16, 2025. 

C. Surety or Trust Responsibilities in 

Cases of Broker/Freight Forwarder 

Financial Failure or Insolvency 

FMCSA defines the terms financial 

failure and insolvency as any payment 

made or other default pursuant to 

§ 387.307(e)(1) not cured in accordance 

with § 387.307(e)(5) or (6) but does not 

include, in and of itself, a broker filing 

for bankruptcy protection pursuant to 

Title 11 of the United States Code. This 

final rule outlines the procedures and 

responsibilities for a surety company or 

financial institution and for FMCSA 

once the company or financial 

institution has become aware that a 

broker or freight forwarder has 

experienced financial failure or 

insolvency. Compliance with this 

provision will be required on January 

16, 2025. 

D. Enforcement Authority 

As proposed in the NPRM, FMCSA 

implements the MAP–21 requirement 

for suspension of a surety provider’s 

authority and to add penalties in 49 CFR 

part 386, appendix B, for violations of 

the new requirements. This final rule 

includes a new paragraph (g)(24) which 

specifies the monetary penalty for 

which a surety company or financial 

institution found to be in violation of 49 

U.S.C. 13906 or § 387.307 will be liable, 

as well as the mandatory 3-year 

ineligibility period for providing broker 

financial security. This final rule does 

not remove any of the authority that 

FMCSA or other Federal entities already 

have in place to enforce compliance 

from brokers, sureties, and financial 

institutions. Compliance for this 

provision will be required on January 

16, 2025. 

E. Entities Eligible To Provide Trust 

Funds for Form BMC–85 Trust Fund 

Filings 

As proposed in the NPRM, FMCSA 

removes the provision allowing loan 

and finance companies to serve as 

BMC–85 trustees. Compliance for this 

provision will be required on January 

16, 2026. 

VII. Section-by-Section Analysis 

This section includes a summary of 

the changes to 49 CFR parts 386 and 

387. The regulatory changes are 

discussed in numerical order. 

Appendix B to Part 386—Penalty 

Schedule: Violations and Monetary 

Penalties 

In Appendix B to part 386, a new 

paragraph (g)(24) is added to clearly 

state the monetary penalty for which a 

surety company or financial institution 

found in violation of 49 U.S.C. 13906 or 

§ 387.307 may be liable. 

Sections 387.307 and 387.307T 

Due to the delayed compliance date(s) 

in this final rule, FMCSA moves the 

existing language in § 387.307 to 

§ 387.307T. This temporary section will 

expire January 16, 2025. FMCSA also 

corrects a typographical error in the 

existing text of the section now 

designated as § 387.307(d)(2)(i)T. 


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26 Docket No. FMCSA–2016–0102–0076. 

New § 387.307 modifies the existing 

language as follows and is suspended 

until January 16, 2025. 

Section 387.307 Property Broker 

Surety Bond or Trust Fund 

In § 387.307(b), FMCSA provides a 

list of acceptable assets for BMC–85 

trust funds. Existing paragraph (c)(7) is 

removed and existing paragraph (c)(8) 

would be renumbered as paragraph 

(c)(7). New paragraphs (e), (f), and (g) 

are added. 

Paragraph (e) sets out the triggers and 

procedures for immediate suspension of 

a broker. The paragraph establishes the 

role of the surety provider or financial 

institution, FMCSA, and the broker. 

Paragraph (f) sets out procedures and 

responsibilities for a surety company or 

a financial institution and FMCSA 

following financial failure or insolvency 

of a broker. A financial failure or 

insolvency of a broker is defined as any 

payment made or other default pursuant 

to § 387.307(e)(1) not cured in 

accordance with § 387.307(e)(5) or (6). 

Paragraph (g) sets out procedures 

concerning suspension of a surety 

company or financial institution’s 

eligibility to file evidence of financial 

responsibility with FMCSA and 

FMCSA’s role in that action. Penalties 

for violation of the requirements of this 

section or subsection (b) of Title 49, 

section 13906 U.S.C. are established. 

Section 387.307T Property Broker 

Surety Bond or Trust Fund 

This section is moved from existing 

§ 387.307. A new introductory 

paragraph is inserted to reflect the 

expiration date of the temporary section. 

No other changes are made to this 

section. This temporary section will 

expire January 16, 2025. 

VIII. Severability 

The purpose of this rule is to 

implement, based on FMCSA’s statutory 

authorities described in section V (Legal 

Basis for the Rulemaking), regulatory 

requirements for the financial security 

of brokers and freight forwarders. A 

judicial decision invalidating some of 

these measures would not necessarily 

require rejection of the entire rule. 

While many the provisions of this rule 

are integrated, and the Agency 

anticipates the separate provisions will 

function most effectively operating 

together, FMCSA nonetheless finds that 

each major provision of the rule is 

severable from the others and would 

operate effectively even in the event 

some provisions were deemed invalid. 

For example, if a court vacated 

FMCSA’s decision to remove loan and 

finance companies from the list of 

allowable BMC–85 providers, that 

removal would not change FMCSA’s 

determination regarding assets readily 

available, nor would it affect the 

validity of the rule’s other provisions, 

which should be allowed to remain in 

effect. Likewise, if a court were to set 

aside FMCSA’s definition of financial 

failure or insolvency, other provisions 

of the rule could be separately 

implemented and thus would remain 

valid. 

IX. Regulatory Analyses 

A. Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review), E.O. 14094 

(Modernizing Regulatory Review), and 

DOT Regulatory Policies and Procedures 

FMCSA has considered the impact of 

this final rule under E.O. 12866 (58 FR 

51735, Oct. 4, 1993), Regulatory 

Planning and Review, E.O. 13563 (76 FR 

3821, Jan. 21, 2011), Improving 

Regulation and Regulatory Review, and 

E.O. 14094 (88 FR 21879, Apr. 11, 

2023), Modernizing Regulatory Review. 

The Office of Information and 

Regulatory Affairs within the Office of 

Management and Budget (OMB) 

determined that this final rulemaking is 

not a significant regulatory action under 

section 3(f) of E.O. 12866, as 

supplemented by E.O. 13563 and E.O. 

14094, and does not require an 

assessment of potential costs and 

benefits under section 6(a)(3) of that 

order. Accordingly, OMB has not 

reviewed it under that E.O. 

A regulatory impact analysis is 

available in the docket. That document: 

• Identifies the problem targeted by 

this rulemaking, including a statement 

of the need for the action. 

• Defines the scope and parameters of 

the analysis. 

• Defines the baseline. 

• Defines and evaluates the costs and 

benefits of the action. 

Copies of the full analysis are 

available in the docket or by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

Summary of Estimated Costs 

Brokers and freight forwarders, surety 

bond and trust fund providers, and the 

Federal Government will incur costs for 

compliance and implementation. The 

quantified costs of the final rule include 

notification costs related to a drawdown 

on a surety bond or trust fund, and 

immediate suspension proceedings, 

FMCSA costs to hire new personnel, 

and costs associated with the 

development and maintenance of the 

BMC–84/85 Filing and Management IT 

System. FMCSA estimates that the 10- 

year cost of the proposed rule will total 

$5.5 million on an undiscounted basis, 

$3.9 million discounted at 7 percent, 

and $4.7 million discounted at 3 percent 

(all in 2022 dollars). The annualized 

cost of the rule will be $559,971 

discounted at 7 percent and $556,786 at 

3 percent. Ninety-eight percent of the 

costs will be incurred by the Federal 

Government. 

Summary of Estimated Benefits 

This final rule will result in benefits 

to motor carriers resulting from a 

decrease in the claims against brokers 

that go unpaid. FMCSA expects that 

result for several reasons. First, FMCSA 

will immediately suspend brokers that 

do not respond following a drawdown 

on their financial security. Such brokers 

will no longer be able to accrue 

liabilities that they do not plan, or lack 

the ability, to pay. This will be 

accomplished through the BMC–84/85 

Filing Management System FMCSA 

intends to implement and maintain as 

part of the larger URS, which is 

currently under development. Surety 

bond and trust fund providers will 

submit claim data and notice of a 

drawdown on a broker bond or trust 

fund in the system, provide notice of 

broker insolvency or financial failure, 

and provide notice if a broker satisfies 

all pending claims and is no longer 

experiencing financial failure or 

insolvency. Notices of a drawdown or 

financial failure will automatically alert 

FMCSA and trigger the system to 

generate a letter outlining requirements 

that must be met for brokers to maintain 

operating authority. Brokers will be able 

to provide written evidence of a restored 

financial instrument through the 

system. Motor carriers will be able to 

query the system to determine if a 

broker has active operating authority 

registration before accepting a load. 

As described above, the BMC–84/85 

Filing Management System within the 

URS will efficiently exchange 

information between motor carriers, 

brokers, financial responsibility 

providers, and FMCSA, thereby 

reducing the information asymmetry 

concerns associated with broker and 

motor carrier transactions. However, 

given a lack of data, FMCSA is unable 

to quantify benefits resulting from this 

rule, and instead qualitatively discusses 

benefits directly related to three 

provisions in the regulatory impact 

analysis. 

FMCSA cannot directly estimate an 

impact on safety resulting from this 

rule. OOIDA 26 contends that broker 


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27TIA also references potential safety benefits of 

this rulemaking, available at Docket No. FMCSA– 

2016–0102–0032. 

28A major rule means any rule that OMB finds 

has resulted in or is likely to result in (a) an annual 

effect on the economy of $100 million or more; (b) 

a major increase in costs or prices for consumers, 

individual industries, geographic regions, Federal, 

State, or local government agencies; or (c) 

significant adverse effects on competition, 

employment, investment, productivity, innovation, 

or on the ability of United States-based enterprises 

to compete with foreign-based enterprises in 

domestic and export markets (5 U.S.C. 802(4)). 

non-payment of claims causes smaller 

motor carriers to defer maintenance on 

their vehicles or ‘‘run harder until they 

make up the shortfall,’’ both resulting in 

unsafe driving practices.27 TIA contends 

that ‘‘small carriers and owner-operators 

often operate on thin financial margins 

and need the revenue from every load 

to maintain their equipment so that it 

meets roadworthiness and safety 

requirements. If they are not paid, 

necessary maintenance and repairs may 

be put off or ignored because of the 

reduced cash flow.’’ With this final rule, 

motor carriers will have more 

information to avoid contracting with 

unscrupulous brokers and will also 

receive more timely payment for work 

completed, without use of interpleader 

proceedings. Both of these outcomes 

will lead to an increase in safety if 

motor carriers choose to use these 

resources to further their safety focus. 

B. Congressional Review Act 

This rule is not a major rule as 

defined under the Congressional Review 

Act (5 U.S.C. 801–808).’’ 28

C. Regulatory Flexibility Act (Small 

Entities) 

The Regulatory Flexibility Act of 

1980, Public Law 96–354, 94 Stat. 1164 

(5 U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Public Law 104– 

121, 110 Stat. 857, Mar. 29, 1996) and 

the Small Business Jobs Act of 2010 

(Public Law 111–240, 124 Stat. 2504, 

Sept. 27, 2010), requires Federal 

agencies to consider the effects of the 

regulatory action on small business and 

other small entities and to minimize any 

significant economic impact. The term 

‘‘small entities’’ comprises small 

businesses and not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

Accordingly, DOT policy requires an 

analysis of the impact of all regulations 

on small entities, and mandates that 

agencies strive to lessen any adverse 

effects on these businesses. 

Accordingly, FMCSA prepared an 

Initial Regulatory Flexibility Analysis 

(IRFA) for the NPRM and a Final 

Regulatory Flexibility Analysis (FRFA) 

for the final rule. This rule will affect 

financial responsibility providers, 

brokers, and freight forwarders. 

FMCSA does not know the asset 

make-up of brokers, and therefore 

cannot anticipate based on current asset 

portfolios how many brokers will be 

unable to fund the type of assets that 

will be required in BMC–85 trust funds 

going forward. FMCSA estimates that a 

maximum of 17 percent of brokers could 

be forced out of the market. However, 

FMCSA anticipates that most, if not all, 

of the brokers who utilize BMC–85 trust 

funds will increase their capitalization 

during the 2-year compliance period 

such that they will meet the assets 

readily available requirements. 

FMCSA does not have data on the 

number of loan and finance companies 

currently serving as BMC–85 trustees. 

FMCSA has no quantifiable data or 

information on what decisions these 

loan and finance companies will make 

(i.e., remain an eligible entity or exit the 

market) nor reliable cost data relating to 

those decisions. Therefore, FMCSA has 

not determined whether this final rule 

will have a significant economic impact 

on a substantial number of small 

entities. 

A FRFA must contain the following: 

(1) A statement of the need for, and 

objectives of, the rule; 

(2) A statement of the significant 

issues raised by the public comments in 

response to the IRFA, a statement of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments; 

(3) The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA) in response to the 

proposed rule, and a detailed statement 

of any change made to the proposed rule 

in the final rule as a result of the 

comments; 

(4) A description of and an estimate 

of the number of small entities to which 

the rule will apply or an explanation of 

why no such estimate is available; 

(5) A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the rule, 

including an estimate of the classes of 

small entities which will be subject to 

the requirement and the type of 

professional skills necessary for 

preparation of the report or record; 

(6) A description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule 

and why each of the other significant 

alternatives to the rule considered by 

the agency which affect the impact on 

small entities was rejected; 

(7) For a covered agency, as defined 

in section 609(d)(2) of the Regulatory 

Flexibility Act, a description of the 

steps the agency has taken to minimize 

any additional cost of credit for small 

entities. 

1. A statement of the need for, and 

objectives of, the rule. 

MAP–21, section 32918, amended 49 

U.S.C. 13906 and provided new 

requirements for the financial security 

of brokers and freight forwarders. 

Congress mandated that FMCSA 

conduct rulemaking to implement the 

statutory changes. The objective of this 

rulemaking is to complete the 

implementation of Congress’s directive 

and to help ensure that motor carriers 

are paid for the services they provide for 

brokers and freight forwarders. 

2. A statement of the significant issues 

raised by the public comments in 

response to the IRFA, a statement of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments. 

There were no public comments 

submitted in response to the IRFA. 

However, the Agency received 

approximately 342 unique comments in 

response to the NPRM. FMCSA received 

some comments concerning small 

businesses, specifically regarding the 

required financial security amount and 

entities eligible to provide trust funds 

for BMC–85 Filings. These comments 

are addressed in Section VI. B. of this 

final rule. 

3. The response of the agency to any 

comments filed by the chief counsel for 

advocacy of the SBA in response to the 

proposed rule, and a detailed statement 

of any change made to the proposed 

rule in the final rule as a result of the 

comments. 

The Chief Counsel for Advocacy of 

the SBA did not file comments in 

response to the proposed rule. 

4. A description of and an estimate of 

the number of small entities to which 

the rule will apply or an explanation of 

why no such estimate is available. 

Small entity is defined in 5 U.S.C. 

601. Section 601(3) defines a small 

entity as having the same meaning as 

small business concern under Section 3 

of the Small Business Act. This includes 

any small business concern that is 

independently owned and operated and 

is not dominant in its field of operation. 


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29More information about NAICS is available at: 

http://www.census.gov/naics/ (accessed June 29, 

2022). 

30U.S. Census Bureau. 2017 Economic Census. 

Available at: https://data.census.gov/cedsci/

table?q=EC1700&n=48-49&tid=ECNSIZE2017.

EC1700SIZEREVEST&hidePreview=true (accessed 

Apr. 20, 2022). 

Section 601(4), likewise includes within 

the definition of small entities not-forprofit enterprises that are independently 

owned and operated and are not 

dominant in their fields of operation. 

Additionally, Section 601(5) defines 

small entities as governments of cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

populations less than 50,000. 

This final rule will affect financial 

responsibility providers, brokers, and 

freight forwarders. 

The financial responsibility providers 

that would be affected by this final rule 

operate under many different North 

American Industry Classification 

System 29 (NAICS) codes with differing 

size standards. Additionally, the 

financial responsibility providers that 

would be affected by the rule are a 

subset of the entities within these codes. 

Many of the entities operating under 

these NAICS codes have various 

functions that do not include providing 

financial responsibility to brokers or 

freight forwarders. In providing a wide 

range of NAICS codes in the finance and 

insurance sectors, FMCSA believes it 

captures financial responsibility 

providers who perform various other 

functions. Table 15 below, the SBA size 

standard for finance and insurance, 

ranges from $15 million in revenue per 

year for insurance agencies and 

brokerages, to $859 million in assets per 

year for commercial banking. 

Brokers and freight forwarders operate 

in the transportation sector under the 

NAICS code 48851. As shown in Table 

15, the SBA size standard for freight 

transportation arrangement is $20.0 

million in revenue. 

TABLE 2—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES

[in millions of 2023$] 

NAICS code NAICS industry description SBA size standard 

Subsector 522—Credit Intermediation and Related Activities 

52211 ...................... Commercial Banking .............................................................................................................................. $850. 

52229 ...................... All Other Nondepository Credit Intermediation ...................................................................................... $47.0. 

Subsector 523—Securities, Commodity Contracts, and Other Financial Investments and Related Activities 

52315 ...................... Investment Banking and Securities Intermediation ................................................................................ $47.0. 

52316 ...................... Commodity Contracts Intermediation ..................................................................................................... $47.0. 

52321 ...................... Securities and Commodity Exchanges .................................................................................................. $47.0. 

52391 ...................... Miscellaneous Intermediation ................................................................................................................. $47.0. 

Subsector 524—Insurance Carriers and Related Activities 

524126 .................... Direct Property and Casualty Insurance Carriers .................................................................................. 1,500 employees. 

524127 .................... Direct Title Insurance Carriers ............................................................................................................... $47.0. 

524128 .................... Other Direct Insurance (except life, health, and medical) Carriers ....................................................... $47.0. 

52413 ...................... Reinsurance Carriers ............................................................................................................................. $47.0. 

52421 ...................... Insurance Agencies and Brokerages ..................................................................................................... $15.0. 

524292 .................... Third Party Administration of Insurance and Pension Funds ................................................................ $45.5. 

Subsector 488—Support Activities for Transportation 

48851 ...................... Freight Transportation Arrangement ...................................................................................................... $20.0. 

FMCSA examined data from the 2017 

Economic Census, the most recent 

Census for which data was available, to 

determine the percentage of firms that 

have revenue at or below SBA’s 

thresholds within each of the NAICS 

industries.30 Boundaries for the revenue 

categories used in the Economic Census 

do not precisely coincide with the SBA 

thresholds. Instead, the SBA threshold 

generally falls between two different 

revenue categories. However, FMCSA 

was able to make reasonable estimates 

as to the percent of small entities within 

each NAICS industry group. 

The commercial banking industry 

group has a revenue size standard of 

$850 million. The largest Economic 

Census revenue category is $100 million 

or more. As such, FMCSA could not 

determine the percent of entities within 

this NAICS industry group that would 

be considered small, and conservatively 

estimates that all commercial banking 

entities are small entities as defined by 

the SBA. 

For Other Nondepository Credit 

Intermediation, the $47.0 million SBA 

threshold falls between two Economic 

Census revenue categories, $25 million 

and $100 million. The percentages of 

Other Nondepository Credit 

Intermediates with revenue less than 

these amounts were 50 percent and 54 

percent, respectively. Because the SBA 

threshold is closer to the lower of these 

two boundaries, FMCSA has assumed 

that the percent of these entities that are 

small will be closer to 50 percent and 

is using that figure. 

The Securities Brokerage industry 

group focuses on underwriting 

securities issues and/or making markets 

for securities and commodities. The 

SBA size standard for this industry 

group is $47.0 million. The $47.0 

million SBA threshold falls between 

two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of Securities 

Brokerages with revenue less than these 

amounts were 97 percent and 98 

percent, respectively. Because the SBA 

threshold is closer to the lower of these 

two boundaries, FMCSA has assumed 

that the percent of securities brokerages 

that are small will be closer to 97 

percent and is using that figure. Note 

that the SBA size standards published 

on March 17, 2023, use the 2022 NAICS 


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codes. A key difference from the 2017 

NAICS is that Investment Banking and 

Securities Dealing (52311) and 

Securities Brokerage (52312) have been 

combined into a single industry, 

Investment Banking and Securities 

Intermediation (52315). Although these 

two industries are now combined 

within NAICS and the SBA size 

standards, we do not wish to capture 

Investment Banking businesses in the 

number of affected entities. The 

estimates in Table 3 exclude these 

entities, as was the case in the NPRM 

RIA. 

The Commodity Contracts Dealing 

industry group focuses on acting as 

agents between buyers and sellers of 

securities and commodities (52313). The 

SBA size standard for this industry 

group is $47.0 million. The $47.0 

million SBA threshold falls between 

two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of commodity 

contracts dealers with revenue less than 

these amounts were 75 percent and 81 

percent. Because the SBA threshold is 

closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of commodity contracts 

dealers that are small will be closer to 

75 percent and is using that figure. 

The Commodity Contracts Brokerage 

industry group focuses on providing 

securities and commodity exchange 

services (52314). The SBA size standard 

for this industry group is $41.5 million. 

The $47.0 million SBA threshold falls 

between two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of commodity 

contracts brokers with revenue less than 

these amounts were 84 percent and 86 

percent. Because the SBA threshold is 

closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of commodity contracts 

brokers that are small will be closer to 

84 percent and is using that figure. Note 

that in the 2022 NAICS, Commodities 

Contract Dealing (52313) and 

Commodities Contracts Brokerages 

(52314) were combined into one 

industry—Commodity Contracts 

Intermediation (52316). Both industries 

previously had identical size standards. 

FMCSA made the assumption that in 

the new combined size standard, both 

industries still maintained identical size 

standards with each other. 

The Securities and Commodity 

Exchanges industry group provides 

marketplaces and mechanisms for the 

purpose of facilitating the buying and 

selling of stocks, stock options, bonds, 

or commodity contracts (52321). The 

SBA size standard for this industry 

group is $47.0 million. The $47.0 

million SBA threshold falls between 

two Economic Census revenue 

categories, $25 million and $100 

million. There are 13 total firms that 

operated for the entire year under the 

securities and commodity exchanges 

industry group, but the Census has 

redacted the number of firms with 

revenue less than $100 million. The 

Census reports that there are 4 firms 

with revenue of $100 million or greater, 

which leads FMCSA to estimate that 

there are nine firms with revenue below 

$100 million. FMCSA conservatively 

estimates that all nine firms with 

revenue below $100 million (69 percent 

of the industry group) are considered 

small. 

The Miscellaneous Intermediation 

industry group primarily engages in 

acting as principals in buying or selling 

of financial contracts (52391). The SBA 

size standard for this industry group is 

$47.0 million. The $47.0 million SBA 

threshold falls between two Economic 

Census revenue categories, $25 million 

and $100 million. The percentages of 

miscellaneous intermediation firms 

with revenue less than these amounts 

were 97 percent and 99.6 percent, 

respectively. Because the SBA threshold 

is closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of miscellaneous 

intermediates that are small will be 

closer to 97 percent and is using that 

figure. 

The Direct Property and Casualty 

Insurance Carriers industry group 

primarily engages in initially 

underwriting insurance policies 

(524126). The SBA size standard for this 

industry group is 1,500 employees. The 

1,500 employees SBA threshold falls 

within the highest employment category 

of 250 employees or more. The low 

bound estimate assumes all firms in this 

category are above the SBA threshold 

and thus can be considered small. The 

high bound estimate assumes all firms 

in this category are below the SBA 

threshold and can be considered small. 

The estimated percentages of direct 

property and casualty insurance carrier 

firms with employment less than the 

SBA threshold is between 92 percent 

and 100 percent. FMCSA has assumed 

that the percent of direct property and 

casualty insurers that are small will be 

closer to 92 percent and is using that 

figure, as the agency believes there exist 

some non-small direct property and 

casualty insurance carriers and thus 92 

percent is a more plausible assumption 

than estimating that the industry 

consists of 100 percent small firms. 

The Direct Title Insurance Carriers 

industry group primarily engages in 

initially underwriting title insurance 

policies (524127). The SBA size 

standard for this industry group is $47.0 

million. The $47.0 million SBA 

threshold falls between two Economic 

Census revenue categories, $25 million 

and $100 million. The percentages of 

direct title insurers with revenue less 

than these amounts were 66 percent and 

67 percent, respectively. Because the 

SBA threshold is closer to the lower of 

these two boundaries, FMCSA has 

assumed that the percent of direct title 

insurers that are small will be closer to 

66 percent and is using that figure. 

The Other Direct Insurance Carriers 

industry group primarily engages in 

initially underwriting insurance policies 

(524128). The SBA size standard for this 

industry group is $47.0 million. The 

$47.0 million SBA threshold falls 

between two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of other direct 

insurance carriers with revenue less 

than these amounts were 58 percent and 

63 percent, respectively. Because the 

SBA threshold is closer to the lower of 

these two boundaries, FMCSA has 

assumed that the percent of other direct 

insurance carriers that are small will be 

closer to 58 percent and is using that 

figure. 

The Reinsurance Carriers industry 

group primarily engages in assuming all 

or part of the risk associated with 

insurance policies originally 

underwritten by a different provider 

(52413). The SBA size standard for this 

industry group is $47.0 million. The 

$47.0 million SBA threshold falls 

between two Economic Census revenue 

categories, $10 million and $100 

million. The percentages of reinsurance 

carriers with revenue less than these 

amounts were 49 percent and 60 

percent, respectively. The SBA 

threshold is not near either of these 

revenue categories, therefore FMCSA 

conservatively estimates that the 

percent of reinsurance carrier firms that 

are small will be closer to 60 percent 

and is using that figure. 

The Insurance Agencies and 

Brokerages industry group primarily 

engages in selling insurance (52421). 

The SBA size standard for this industry 

group is $15 million. The $15 million 

SBA threshold falls between two 

Economic Census revenue categories, 

$10 million and $25 million. The 

percentages of insurance agencies and 

brokerages with revenue less than these 

amounts were 99 percent and 100 

percent, respectively. Because the SBA 

threshold is closer to the lower of these 

two boundaries, FMCSA has assumed 

that the percent of insurance agencies 

and brokerages that are small will be 


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closer to 99 percent and is using that 

figure. 

The Third Party Administration of 

Insurance and Pension Funds industry 

group primarily engages in providing 

third-party administrative services of 

insurance (524292). The SBA size 

standard for this industry group is $45.5 

million. The $45.5 million SBA 

threshold falls between two Economic 

Census revenue categories, $25 million 

and $100 million. The percentages of 

firms with revenue less than these 

amounts were 92 percent and 97 

percent, respectively. Because the SBA 

threshold is closer to the lower of these 

two boundaries, FMCSA has assumed 

that the percent of firms that are small 

will be closer to 92 percent and is using 

that figure. 

The Freight Transportation 

Arrangement industry group primarily 

engages in arranging the transportation 

of freight between shippers and motor 

carriers (48851). The SBA size standard 

for this industry group is $20.0 million. 

The $20.0 million SBA threshold falls 

between two Economic Census revenue 

categories, $10 million and $25 million. 

The percentages of firms with revenue 

less than these amounts were 93 percent 

and 97 percent, respectively. Because 

the SBA threshold is closer to the higher 

of these two boundaries, FMCSA has 

assumed that the percent of firms that 

are small will be closer to 97 percent 

and is using that figure. Table 3 below 

shows the complete estimates of the 

number of small entities within the 

NAICS industry groups that may be 

affected by this rule. FMCSA notes that 

there are approximately 36,000 financial 

responsibility providers, which is a 

small subset of the firms identified in 

the commercial industry groups below. 

TABLE 3—ESTIMATES OF NUMBERS OF SMALL ENTITIES

NAICS 

code Description 

Total 

number of 

firms 

Number 

of small 

entities 

% of all 

firms 

52211 .................... Commercial Banking ............................................................................................ 4,804 4,804 100 

52229 .................... All Other Nondepository Credit Intermediation .................................................... 10,411 5,255 50 

52312 .................... Securities Brokerage ............................................................................................ 6,009 5,832 97 

52313 .................... Commodity Contracts Dealing ............................................................................. 493 368 75 

52314 .................... Commodity Contracts Brokerage ......................................................................... 728 608 84 

52321 .................... Securities and Commodity Exchanges ................................................................ 13 9 69 

52391 .................... Miscellaneous Intermediation ............................................................................... 6,912 6,715 97 

524126 .................. Direct Property and Casualty Insurance Carriers ................................................ 2,079 1,912 92 

524127 .................. Direct Title Insurance Carriers ............................................................................. 662 438 66 

524128 .................. Other Direct Insurance (except life, health, and medical) Carriers ..................... 285 166 58 

52413 .................... Reinsurance Carriers ........................................................................................... 129 77 60 

52421 .................... Insurance Agencies and Brokerages ................................................................... 106,260 105,056 99 

524292 .................. Third Party Administration of Insurance and Pension Funds .............................. 2,498 2,306 92 

48851 .................... Freight Transportation Arrangement .................................................................... 13,252 12,889 97 

5. A description of the proposed 

reporting, recordkeeping, and other 

compliance requirements of the rule, 

including an estimate of the classes of 

small entities which will be subject to 

requirements and the type of 

professional skills necessary for 

preparation of the report or record. 

Small financial responsibility 

providers and brokers will be required 

to provide notification to FMCSA of 

specific activity on a broker bond or 

trust fund. FMCSA anticipates that 

these notifications can be completed by 

office clerks. 

Though this rulemaking does not 

modify existing, or create any new, 

paperwork impacts within the 3-year 

timeframe, FMCSA acknowledges that 

due to the impacts of compliance with 

this rulemaking there will likely be 

changes to the information collection 

requirements associated with this 

rulemaking at a future date due to the 

requirements set forth in this 

rulemaking. 

6. A description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule 

and why each of the other significant 

alternatives to the rule considered by 

the agency which affect the impact of 

small entities was rejected. 

FMCSA made its best effort to draft a 

rule that would minimize any 

significant economic impact on small 

entities. 

After reviewing comments to the 

NPRM, FMCSA understands that 

brokers may find it easier to comply 

with the regulations if they know the 

specific asset classes FMCSA deems 

acceptable. FMCSA, therefore, 

determined that cash, ILCs issued by 

institutions insured by the FDIC or 

NCUA, and Treasury bonds will 

constitute the acceptable categories of 

assets readily available. No other asset 

types, including but not limited to real 

estate, stocks, bonds, and other 

securities, will be considered 

acceptable. The list of acceptable assets 

provides the broadest range of assets 

that meet the criteria set by Congress in 

MAP–21 while also providing more 

clarity to small businesses than the 

proposed list of prohibited assets in the 

NPRM did. 

Most commenters and agency 

stakeholders support prohibiting loan 

and finance companies from serving as 

financial institutions for the broker 

market. These entities are not regulated 

to the same extent as other financial 

institutions at the state or Federal level. 

For example, they may not undergo 

safety and soundness examinations that 

score institutions in various areas, such 

as capital adequacy or asset quality. 

This decision is intended to ensure that 

a small broker’s or freight forwarder’s 

surety bond or trust fund assets remain 

stable, secure, and readily available. 

In Chapter 3.3.1 of the final rule’s 

RIA, FMCSA has outlined the process 

and anticipated timeline for a loan and 

finance company to become an FDICinsured depository institution in order 

to continue serving as a BMC–85 

trustee. FMCSA has learned through 

this knowledge and public comments 

that the 2-year implementation period is 

reasonable for loan and finance 

companies to achieve compliance if 

they wish to do so. 

FMCSA has no data on the number of 

loan and finance companies currently 

serving as BMC–85 trustees but 

understands that the top five BMC–85 

trustees currently serve about 93 percent 


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31Public Law 108–447, 118 Stat. 2809, 3268, note 

following 5 U.S.C. 552a (Dec. 4, 2014). 

of the BMC–85 market, while 97 percent 

of the BMC–85 trustees serve five or 

fewer brokers. Based on this data, it is 

safe to assume that providing financial 

responsibility to brokers is not the main 

line of business for most trust fund 

providers. FMCSA also has no 

quantifiable data or information on what 

decisions these loan and finance 

companies will make (i.e., remain an 

eligible entity or exit the market) nor 

reliable cost data relating to those 

decisions. 

FMCSA proposed a 3-year compliance 

date in the NPRM to allow ample time 

for small entities to meet the 

requirements of the rule. The comments 

received from small entities and 

stakeholders indicate that a three-year 

compliance date is unnecessarily long. 

After careful consideration of comments 

to the NPRM, the Agency determined 

that reducing the 3-year implementation 

period to 2 years will be beneficial to 

stakeholders while still allowing 

sufficient time for small businesses to 

comply with the financial requirements, 

considering their available resources. 

The compliance date for the 

immediate suspension, financial failure 

or insolvency, and enforcement 

authority provisions is one year because 

the Agency believes that these 

provisions are the most urgently needed 

to protect motor carriers, shippers, and 

other parties in the transportation 

industry from brokers and freight 

forwarders who are financially unable 

or unwilling to meet their obligations 

and from surety providers or financial 

institutions that do not properly report 

such brokers to FMCSA. The 

compliance date for the other provisions 

(assets readily available and entities 

eligible to serve as trust providers) is 2 

years because the Agency believes and 

that small businesses will need more 

time to come into compliance with 

them. The Agency believes this 

compliance date is the best way to 

minimize the economic impact of the 

rule’s implementation on small entities. 

FMCSA does not know the asset 

make-up of brokers, and therefore 

cannot anticipate how many brokers 

will be unable to fund the type of assets 

that we will require in BMC–85 trust 

funds given their current portfolio. 

FMCSA estimates that a maximum of 17 

percent of brokers could be forced out 

of the market. FMCSA anticipates that 

most, if not all, of the brokers who 

utilize the BMC–85 trust funds will 

increase their capitalization during the 

2-year compliance period. FMCSA 

believes the 2-year compliance period 

will allow most brokers to meet the 

assets readily available requirements. 

In the event that a broker does not 

meet the assets readily available 

requirement, FMCSA anticipates that at 

least some of the freight brokerage 

business will then be shifted, or 

transferred, to other brokers that 

maintain their operating authority. 

FMCSA does not anticipate a substantial 

disruption to the freight brokerage 

market resulting from this final rule. 

FMCSA has already implemented 

Congress’s directive to set the minimum 

financial security required of $75,000 

and is not altering the amount in this 

final rule. FMCSA is not aware of any 

further significant alternatives that 

would meet the intent of our statutory 

requirements. 

7. Description of steps taken by a 

covered agency to minimize costs of 

credit for small entities. 

FMCSA is not a covered agency as 

defined in section 609(d)(2) of the 

Regulatory Flexibility Act and has taken 

no steps to minimize the additional cost 

of credit for small entities. 

C. Assistance for Small Entities 

In accordance with section 213(a) of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121, 110 Stat. 857), FMCSA 

wants to assist small entities in 

understanding this final rule so they can 

better evaluate its effects on themselves 

and participate in the rulemaking 

initiative. If the final rule will affect 

your small business, organization, or 

governmental jurisdiction and you have 

questions concerning its provisions or 

options for compliance, please consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce or otherwise determine 

compliance with Federal regulations to 

the Small Business Administration’s 

Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

(Office of the National Ombudsman, see 

https://www.sba.gov/about-sba/ 

oversight-advocacy/office-nationalombudsman) and the Regional Small 

Business Regulatory Fairness Boards. 

The Ombudsman evaluates these 

actions annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of FMCSA, call 1–888–REG– 

FAIR (1–888–734–3247). DOT has a 

policy regarding the rights of small 

entities to regulatory enforcement 

fairness and an explicit policy against 

retaliation for exercising these rights. 

E. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) (UMRA) 

requires Federal agencies to assess the 

effects of their discretionary regulatory 

actions. The Act addresses actions that 

may result in the expenditure by a State, 

local, or Tribal government, in the 

aggregate, or by the private sector of 

$192 million (which is the value 

equivalent of $100 million in 1995, 

adjusted for inflation to 2022 levels) or 

more in any 1 year. Though this final 

rule would not result in such an 

expenditure, and the analytical 

requirements of UMRA do not apply as 

a result, the Agency discusses the effects 

of this rule elsewhere in this preamble. 

F. Paperwork Reduction Act 

This final rule contains no new 

information collection requirements 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3520). 

Though this rulemaking does not 

modify existing, or create any new, 

paperwork impacts within the 3-year 

timeframe, FMCSA acknowledges that 

due to the impacts of compliance with 

this rulemaking there will likely be 

changes to the information collection 

requirements associated with this 

rulemaking at a future date due to the 

requirements set forth in this 

rulemaking. When those potential 

changes are identified, FMCSA will 

publish a notice in the Federal Register 

soliciting comment on those changes. 

G. E.O. 13132 (Federalism) 

A rule has implications for federalism 

under section 1(a) of E.O. 13132 if it has 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ 

FMCSA has determined that this rule 

will not have substantial direct costs on 

or for States, nor would it limit the 

policymaking discretion of States. 

Nothing in this document preempts any 

State law or regulation. Therefore, this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Impact Statement. 

H. Privacy 

The Consolidated Appropriations Act, 

2005,31 requires the Agency to assess 

the privacy impact of a regulation that 

will affect the privacy of individuals. 

This rule would not require the 

collection of personally identifiable 


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32Public Law 107–347, sec. 208, 116 Stat. 2899, 

2921 (Dec. 17, 2002). 

information (PII). The supporting 

Privacy Impact Analysis (PIA), available 

for review in the docket, gives a full and 

complete explanation of FMCSA 

practices for protecting PII in general 

and specifically in relation to this final 

rule. 

The Privacy Act (5 U.S.C. 552a) 

applies only to Federal agencies and any 

non-Federal agency that receives 

records contained in a system of records 

from a Federal agency for use in a 

matching program. 

The E-Government Act of 2002,32

requires Federal agencies to conduct a 

PIA for new or substantially changed 

technology that collects, maintains, or 

disseminates information in an 

identifiable form. No new or 

substantially changed technology will 

collect, maintain, or disseminate 

information as a result of this rule. 

Accordingly, FMCSA has not conducted 

a PIA. 

In addition, the Agency submitted a 

Privacy Threshold Assessment (PTA) to 

evaluate the risks and effects the 

proposed rulemaking might have on 

collecting, storing, and sharing 

personally identifiable information. The 

DOT Privacy Office has determined that 

this rulemaking does not create privacy 

risk. 

I. E.O. 13175 (Indian Tribal 

Governments) 

This rule does not have Tribal 

implications under E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, because it 

does not have a substantial direct effect 

on one or more Indian Tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

J. National Environmental Policy Act of 

1969 

FMCSA analyzed this rule pursuant to 

the National Environmental Policy Act 

of 1969 (NEPA) (42 U.S.C. 4321 et seq.) 

and determined this action is 

categorically excluded from further 

analysis and documentation in an 

environmental assessment or 

environmental impact statement under 

FMCSA Order 5610.1 (69 FR 9680), 

Appendix 2, paragraphs (6.k) and (6.q). 

The categorical exclusions (CEs) in 

paragraphs (6.k) and (6.q) cover broker 

activities and implementation of record 

preservation. The requirements in this 

rule are covered by these CEs and do not 

have any effect on the quality of the 

environment. 

List of Subjects 

49 CFR Part 386 

Administrative practice and 

procedure, Brokers, Freight forwarders, 

Hazardous materials transportation, 

Highway safety, Motor carriers, Motor 

vehicle safety, Penalties. 

49 CFR Part 387 

Buses, Freight, Freight forwarders, 

Hazardous materials transportation, 

Highway safety, Insurance, 

Intergovernmental relations, Motor 

carriers, Motor vehicle safety, Moving of 

household goods, Penalties, Reporting 

and recordkeeping requirements, Surety 

bonds. 

For the reasons set forth in the 

preamble, FMCSA amends 49 CFR parts 

386 and 387 as follows: 

PART 386—RULES OF PRACTICE FOR 

FMCSA PROCEEDINGS 

■ 1. The authority citation continues to 

read as follows: 

Authority: 49 U.S.C. 113; chapters 5, 51, 

131–141, 145–149, 311, 313, and 315; Sec. 

204, Pub. L. 104–88, 109 Stat. 803, 941 (49 

U.S.C. 701 note); Sec. 32402, Pub. L. 112– 

141, 126 Stat. 405, 795 (49 U.S.C. 31306a); 

Sec. 701 Pub. L. 114–74, 129 Stat. 599 (28 

U.S.C. 2461 note); 49 CFR 1.81 and 1.87. 

■ 2. Amend Appendix B by adding 

paragraph (g)(24) to read as follows: 

Appendix B to Part 386—Penalty 

Schedule: Violations and Monetary 

Penalties 

* * * * * 

(g) * * * 

(24) Beginning on January 16, 2025, a 

surety company or financial institution 

for a broker or freight forwarder 

pursuant to §§ 387.307 or 387.403T that 

violates subsection (b) or (c) of Title 49 

of the United States Code, Section 

13906 or § 387.307:— 

(i) Is liable to the United States for a 

penalty of $12,882 for each violation; 

and 

(ii) Will be ineligible to provide 

broker financial security for three years. 

* * * * * 

PART 387—MINIMUM LEVELS OF 

FINANCIAL RESPONSIBILITY FOR 

MOTOR CARRIERS 

■ 3. The authority citation continues to 

read as follows: 

Authority: 49 U.S.C. 13101, 13301, 13906, 

13908, 14701, 31138, and 31139; sec. 204(a), 

Pub. L. 104–88, 109 Stat. 803, 941; and 49 

CFR 1.87. 

■ 4. Redesignate § 387.307 as 

§ 387.307T. 

■ 5. Add a new § 387.307, to read as 

follows: 

§ 387.307 Property broker surety bond or 

trust fund. 

This section is effective January 16, 

2025. 

(a) Security. A broker must have a 

surety bond or trust fund of $75,000 in 

effect. FMCSA will not register a broker 

until a surety bond or trust fund for the 

full limits of liability prescribed herein 

is in effect. The broker registration shall 

remain in effect only as long as a surety 

bond or trust fund remains in effect and 

shall ensure the financial responsibility 

of the broker. Evidence of a surety bond 

must be filed using FMCSA’s prescribed 

Form BMC–84. Evidence of a trust fund 

with a financial institution must be filed 

using FMCSA’s prescribed Form BMC– 

85. The surety bond or the trust fund 

shall ensure the financial responsibility 

of the broker by providing for payments 

to shippers or motor carriers if the 

broker fails to carry out its contracts, 

agreements, or arrangements for the 

supplying of transportation by 

authorized motor carriers. 

(b) Acceptable assets. Beginning on 

January 16, 2026, trust funds under this 

section must contain assets aggregating 

to $75,000 that can be liquidated to cash 

within 7 calendar days. As of this date, 

acceptable assets included in any trust 

fund filed under this section are limited 

to cash, irrevocable letters of credit 

issued by a federally insured depository 

institution, and Treasury bonds. 

(c) Financial institution. When used 

in this section and in forms prescribed 

under this section, where not otherwise 

distinctly expressed or manifestly 

incompatible with the intent thereof, 

shall mean each agent, agency, branch 

or office within the United States of any 

person, as defined by the ICC 

Termination Act, doing business in one 

or more of the capacities: 

(1) An insured bank (as defined in 

section 3(h) of the Federal Deposit 

Insurance Act (12 U.S.C. 1813(h)); 

(2) A commercial bank or trust 

company; 

(3) An agency or branch of a foreign 

bank in the United States; 

(4) An insured depository institution 

(as defined in section 3(c)(2) of the 

Federal Deposit Insurance Act (12 

U.S.C. 1813(c)(2)); 

(5) A thrift institution (savings bank, 

building and loan association, credit 

union, industrial bank or other); 

(6) An insurance company; 

(7) Until January 16, 2026, a loan or 

finance company; or 


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Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 78673 

(8) A person subject to supervision by 

any State or Federal bank supervisory 

authority. 

(d) Forms and Procedures. (1) Forms 

for broker surety bonds and trust 

agreements. Form BMC–84 broker 

surety bond will be filed with FMCSA 

for the full security limits under 

paragraph (a) of this section; or Form 

BMC–85 broker trust fund agreement 

will be filed with FMCSA for the full 

security limits under paragraph (a) of 

this section. 

(2) Broker surety bonds and trust fund 

agreements in effect continuously. 

Surety bonds and trust fund agreements 

shall specify that coverage thereunder 

will remain in effect continuously until 

terminated as herein provided in 

paragraphs (d)(2)(i) and (d)(2)(ii) of this 

section. 

(i) Cancellation notice. The surety 

bond and the trust fund agreement may 

be cancelled only upon 30 days’ written 

notice to FMCSA, on prescribed Form 

BMC–36, by the principal or surety for 

the surety bond, and on prescribed 

Form BMC–85, by the trustor/broker or 

trustee for the trust fund agreement. The 

notice period commences upon the 

actual receipt of the notice at FMCSA’s 

Washington, DC office. 

(ii) Termination by replacement. 

Broker surety bonds or trust fund 

agreements which have been accepted 

by FMCSA under these rules may be 

replaced by other surety bonds or trust 

fund agreements, and the liability of the 

retiring surety or trustee under such 

surety bond or trust fund agreements 

shall be considered as having 

terminated as of the effective date of the 

replacement surety bond or trust fund 

agreement. However, such termination 

shall not affect the liability of the surety 

or the trustee hereunder for the payment 

of any damages arising as the result of 

contracts, agreements or arrangements 

made by the broker for the supplying of 

transportation prior to the date such 

termination becomes effective. 

(e) Immediate suspension. (1) A 

surety company issuing a Form BMC–84 

or a financial institution issuing a Form 

BMC–85 must notify FMCSA in writing, 

by electronic means, when the surety 

company or financial institution: 

(i) Makes a payment, with the consent 

of the broker, from the surety bond or 

trust fund for a claim by a shipper or 

motor carrier that causes the surety 

bond or trust fund to fall below $75,000; 

(ii) Makes a payment in any case in 

which the broker does not respond 

within 7 business days to address the 

validity of the claim, and the surety 

provider or financial institution 

determines that the claim is valid, and 

the payment causes the surety bond or 

trust fund to fall below $75,000; 

(iii) Makes a payment due to a 

judgment against the broker that causes 

the surety bond or trust fund to fall 

below $75,000; or 

(iv) Determines that the broker is 

experiencing financial failure or 

insolvency and that the surety company 

or financial institution will be required 

to pay one or more claims pursuant to 

49 U.S.C. 13906(b)(6) in an amount that 

will cause the surety bond or trust fund 

to fall below $75,000. The surety 

company or financial institution may 

make this determination when: 

(A) It receives one or more claims 

that, if paid, would reduce the balance 

of the trust fund or surety bond below 

the required minimum; 

(B) It has notified the broker of such 

claims and provided 7 business days for 

the broker to respond to the 

determination; and 

(C) Either the broker fails to respond 

within the time period provided in 

paragraph (e)(1)(D)(ii) of this section, or 

provides a response and the surety 

company or financial institution 

nevertheless determines that the claim 

is legitimate and that the surety 

company or financial institution expects 

to make one or more payments on the 

claim from the bond or trust fund. 

(2) Paragraph (e)(1) of this section 

does not apply when a broker has filed 

to initiate a proceeding pursuant to Title 

11 of the United States Code. 

(3) The notification to FMCSA must 

include the broker’s MC number or 

USDOT number, a description of the 

reason for the notification, and either: 

(i) Evidence of the date a payment 

was made under paragraphs (e)(1)(i) 

through (iii) of this section and amount 

of such payment, or 

(ii) A list of currently pending claims, 

amounts, and evidence that the surety 

company or financial institution 

complied with the notification 

requirements in paragraph (e)(1)(D) of 

this section. 

(4) The notification to FMCSA must 

be made within 2 business days of a 

payment or determination. 

(5) Upon notification by the surety 

company or financial institution in 

accordance with paragraphs (e)(1) 

through (4) of this section, FMCSA will 

provide written notice to the broker that 

its operating authority registration 

issued pursuant to part 365 of this 

chapter will be suspended within 7 

business days of the date of the notice 

unless the broker provides written 

evidence to FMCSA that the notification 

was sent in error, the surety bond or 

trust fund has been restored to the 

$75,000 amount required by this 

section, or the pending claims have 

been satisfied without the use of surety 

bond or trust fund assets. 

(6) If the broker fails to respond to the 

notice within 7 business days, FMCSA 

will enter a suspension of the broker’s 

authority and provide written notice to 

the broker that the suspension is in 

effect. A broker whose authority has 

been suspended may request FMCSA to 

lift the suspension by providing written 

evidence that the notification was sent 

in error; the surety bond or trust fund 

has been restored to the $75,000 amount 

required by this section; or the pending 

claims have been satisfied without the 

use of surety bond or trust fund assets. 

FMCSA will consider such evidence 

and provide written notice to the broker 

of its determination. 

(f) Financial failure or insolvency of 

the broker. (1) For purposes of this 

section, a financial failure or insolvency 

of a broker is defined as any payment 

made or other default pursuant to 

§ 387.307(e)(1) not cured in accordance 

with § 387.307(e)(5) or (6). 

(2) For purposes of this provision, a 

filing related to the broker pursuant to 

Title 11 of the United States Code does 

not constitute financial failure or 

insolvency. 

(3) If a surety company or financial 

institution makes a determination as 

described in paragraph (f)(1) of this 

section, such surety company or 

financial institution shall initiate 

cancellation of the Form BMC–84 or 

Form BMC–85 pursuant to paragraph 

(d)(2)(i) of this section. 

(4) Upon notification by the surety 

company or financial institution, 

FMCSA will provide written notice of 

the cancellation in the FMCSA Register 

on its public website. The surety or 

financial institution must accept claims 

against the BMC–84 surety bond or 

BMC–85 trust fund for 60 calendar days 

(extended to the next business day if the 

final day of the period falls on a 

weekend or Federal holiday) following 

FMCSA’s public notification of the 

financial failure or insolvency in the 

FMCSA Register. 

(5) If a surety company or financial 

institution notifies FMCSA of its 

determination pursuant to paragraph 

(e)(1)(iv) that a broker is experiencing 

financial failure or insolvency and the 

broker subsequently satisfies all 

pending claims that would have 

reduced the surety bond or trust fund 

below $75,000, the surety company or 

financial institution must immediately 

notify FMCSA that the broker is no 

longer experiencing financial failure or 

insolvency. Upon receiving evidence 

from the broker that the surety company 

or financial institution has terminated 


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78674 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Rules and Regulations 

the cancellation process and reinstituted 

the bond or trust, or that the broker has 

obtained a new bond or trust from 

another eligible surety company or 

financial institution, FMCSA will 

promptly provide written notice in the 

FMCSA Register on its public website 

that the financial failure or insolvency 

has been cured. 

(g) Suspension of surety company or 

financial institution. (1) If a surety 

company or financial institution 

violates the requirements of this section 

or 49 U.S.C. 13906(b) or (c), FMCSA 

shall suspend the authorization of such 

surety company or financial institution 

to have its instruments filed as evidence 

of financial responsibility pursuant to 

§ 387.307 for 3 years. 

(2) If FMCSA initiates a suspension 

action pursuant to paragraph (g)(1) of 

this section it shall provide written 

notice to the surety company or 

financial institution, provide 30 

calendar days (extended to the next 

business day if the final day of the 

period falls on a weekend or Federal 

holiday) for the surety company or 

financial institution to provide evidence 

contesting such proposed suspension, 

and then render a final decision in 

writing. 

■ 6. Amend newly redesignated 

§ 387.307T by: 

■ a. Adding introductory text; and 

■ b. Revising paragraph (d)(2)(i). 

The addition and revision read as 

follows: 

§ 387.307T Property broker surety bond or 

trust fund. 

This section will remain in effect 

until January 16, 2025. 

* * * * * 

(d) * * * 

(2) * * * 

(i) Cancellation notice. The surety 

bond and the trust fund agreement may 

be cancelled only upon 30 days’ written 

notice to the FMCSA, on prescribed 

Form BMC 36, by the principal or surety 

for the surety bond, and on prescribed 

Form BMC 85, by the trustor/broker or 

trustee for the trust fund agreement. 

* * * * * 

Issued under authority delegated in 49 CFR 

1.87. 

Robin Hutcheson, 

Administrator. 

[FR Doc. 2023–25312 Filed 11–15–23; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 221214–0271] 

RIN 0648–BL52 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Revolution 

Wind Offshore Wind Farm Project 

Offshore Rhode Island; Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; correction. 

SUMMARY: This document contains 

corrections to a final rule. The 

document being corrected is the 

regulations governing the Takes of 

Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Revolution 

Wind Offshore Wind Farm Project 

Offshore Rhode Island, published on 

October 20, 2023. 

DATES: Effective on November 20, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Carter Esch, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Background 

NMFS published a final rule in the 

Federal Register on October 20, 2023 

(88 FR 72562) announcing the 

promulgation of regulations governing 

the incidental take of marine mammals 

incidental to Revolution Wind, LLC’s 

(Revolution Wind), construction of the 

Revolution Wind Offshore Wind Energy 

Project in Federal and State waters 

offshore Rhode Island, specifically 

within the Bureau of Ocean Energy 

Management (BOEM) Commercial Lease 

of Submerged Lands for Renewable 

Energy Development on the Outer 

Continental Shelf (OCS) Lease Area 

OCS–A–0486 and along two export 

cable routes to sea-to-shore transition 

points, valid for 5 years from the date 

of effectiveness. 

The regulations, which allow for the 

issuance of a Letter of Authorization to 

Revolution Wind for the incidental take 

of marine mammals during the specified 

activities within the specified 

geographical region during the effective 

dates of the regulations, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

NMFS refers the reader to the final rule 

(88 FR 72562, October 20, 2023) for 

background information concerning the 

regulations. The regulations contained a 

codification error requiring correction. 

Specifically, 50 CFR 217.274(b)(8) was 

promulgated twice (i.e., two different 

measures were both designated as 

217.274(b)(8), necessitating 

renumbering), and, therefore, a 

correction is necessary to properly 

number 50 CFR 217.274(b). 

Correction 

■ Effective November 20, 2023, in rule 

document 2023–22056 at 88 FR 72659 

in the issue of October 20, 2023, on page 

72662, in the first column, in 

amendatory instruction 2, paragraph (b) 

is corrected to read as follows: 

§ 217.274 [Corrected] 

(b) Vessel strike avoidance measures. 

LOA Holder must comply with the 

following vessel strike avoidance 

measures, unless an emergency 

situation presents a threat to the health, 

safety, or life of a person or when a 

vessel, actively engaged in emergency 

rescue or response duties, including 

vessel-in-distress or environmental 

crisis response, requires speeds in 

excess of 10 kn (11.5 miles per hour 

(mph)) to fulfill those responsibilities, 

while in the specified geographical 

region: 

(1) Prior to the start of the Project’s 

activities involving vessels, LOA Holder 

must receive a protected species 

training that covers, at a minimum, 

identification of marine mammals that 

have the potential to occur where 

vessels would be operating; detection 

observation methods in both good 

weather conditions (i.e., clear visibility, 

low winds, low sea states) and bad 

weather conditions (i.e., fog, high 

winds, high sea states, with glare); 

sighting communication protocols; all 

vessel speed and approach limit 

mitigation requirements (e.g., vessel 

strike avoidance measures); and 

information and resources available to 

the project personnel regarding the 

applicability of Federal laws and 

regulations for protected species. This 

training must be repeated for any new 

vessel personnel who join the Project. 

The dedicated visual observers must 

receive prior training on protected 

species detection and identification, 

vessel strike minimization procedures, 

how and when to communicate with the 

vessel captain, and reporting 

requirements in this subpart. 

Confirmation of the observers’ training 

and understanding of the Incidental 


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