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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On June 10, the Federal Motor Carrier Safety Administration (FMCSA) published a&nbsp;<a href="https://www.federalregister.gov/documents/2022/06/10/2022-12574/definitions-of-broker-and-bona-fide-agents" target="_blank" rel="noopener">notice</a> seeking public comments to help it develop guidance clarifying the definitions of “broker” and “bona fide agents.” The guidance is intended to address whether the agency regulates as brokers trucking businesses that provide electronic load board services, dispatch services, and other intermediary services. The comments are due July 11.

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Questions have arisen about whether entities that provide dispatch services should qualify as bona fide agents and whether entities in the trucking industry that operate electronic load board services or have adopted other novel business models qualify as brokers. In fact, the FMCSA’s notice states that the agency has received many requests about the broker definition and has become aware of “significant stakeholder interest in FMCSA’s unauthorized brokerage enforcement.” Also, Congress has directed the FMCSA to issue guidance clarifying its definitions in 49 CFR 371.2 of the terms “broker” and “bona fide agents” by November 15, considering the extent to which dispatch-service providers are brokers or bona fide agents and the extent to which technology has changed the nature of freight brokerage.

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Guidance on the definitions of broker and bona fide agent will likely have a significant impact on trucking intermediaries, especially those that use novel business models. The FMCSA requires brokers to have a $75,000 surety bond or trust fund and comply with recordkeeping rules, misrepresentation prohibitions, rebating and compensation limitations, accounting rules, and other requirements. But the agency does not regulate what it calls bona fide agents as brokers in certain circumstances where they perform what would otherwise be broker services. Depending on whether the agency expands or narrows the definitions of broker and bona fide agent, trucking intermediaries may see their compliance obligations change significantly, which could ultimately affect regulatory protections afforded shippers and the costs of intermediary services.

Interested parties, including shippers and intermediaries, may provide comments to the FMCSA to inform the future guidance. Specifically, the FMCSA’s June 10 notice invites responses to several important questions related to the future guidance, including:

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Karyn A. Booth 202.263.4108 <a href="mailto:Karyn.Booth@ThompsonHine.com">Karyn.Booth@ThompsonHine.com</a>

Jason D. Tutrone 202.263.4143 <a href="mailto:Jason.Tutrone@ThompsonHine.com">Jason.Tutrone@ThompsonHine.com</a>

Dan Ujczo 614.469.3319 <a href="mailto:Dan.Ujczo@ThompsonHine.com">Dan.Ujczo@ThompsonHine.com</a>

Kerem Bilge 202.263.4104 <a href="mailto:Kerem.Bilge@ThompsonHine.com">Kerem.Bilge@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

FMCSA Requests Comments on Broker and Bona Fide Agents Definitions

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