FMCSA Seeks Authority to Go After Unlawful Brokers Directly

Policing illegal brokerages requires two things that federal regulators lack: direct enforcement authority and supporting data, a new report states.

The Federal Motor Carrier Safety Administration (FMCSA) asserts in a recent report to Congress that these limits are hampering efforts to regulate double brokering and unlawful brokerages.

The report, released July 20, asserts that a 2019 administrative ruling prohibits FMCSA from directly pursuing violators. Instead, the agency must seek Justice Department intervention, which can be a time-consuming process.

“Without statutory authority to assess civil penalties administratively for violations of FMCSA’s commercial regulations, FMCSA’s ability to effectively enforce these regulations is significantly limited,” the report stated. “Unless a regulated entity that violates FMCSA’s commercial regulations voluntarily resolves its noncompliance, FMCSA must refer cases to DOJ for enforcement of those regulations.”

Additionally, the report noted that FMCSA lacks the necessary data to tie unlawful brokering to motor carrier safety, which is its governing focus. “While the agency has received multiple expressions of concern from stakeholders regarding fraud related to ‘double brokering,’ it lacks data to quantify or confirm a safety impact,” the report states.

FMCSA also acknowledged “an association between motor carriers with poorer safety performance and carriers that lack a verifiable ‘brick and mortar’ principal place of business,” but because brokers “do not typically engage in the actual transportation of goods … the direct safety impact of failing to register with FMCSA as a broker is unclear.”

To address the lack of data, the agency is “considering additional research into any safety nexus with unlawful brokerage.”

But the agency asserts that the enforcement issue requires something more substantial; the report asks Congress to revise FMCSA’s governing statutes “to clearly vest FMCSA with the statutory authority to assess civil penalties administratively for unauthorized brokerage violations.”