WASHINGTON — After years of waiting and prodding from small-business truckers, federal regulators have finally set a date for a rulemaking to amend rules on truck broker contracting requirements — and the truckers are not happy with the schedule.
The latest regulatory agenda published by the U.S. Department of Transportation sets a Federal Motor Carrier Safety Administration notice of proposed rulemaking (NPRM), Transparency in Property Carrier Broker Transactions, for Oct. 31, 2024.
That date is more than four years after the Small Business in Transportation Coalition and the Owner-Operator Independent Drivers Association petitioned FMCSA to make changes that the two groups contend would level what they see as an unfair playing field in broker-carrier contracting.
“The continued delay is BS — transparency has been required since 1980,” said OOIDA President Todd Spencer, when asked to comment.
“FMCSA stated in March 2023 the time frame would be announced in the upcoming unified regulatory agenda. The agenda indicated June [as a rulemaking date] and now they’ve inexplicably delayed more than a year. The public docket from our petition as well as the listening sessions they’ve held provided an abundance of material to produce a meaningful proposal by now,” Spencer said.
OOIDA and SBTC originally petitioned FMCSA in May 2020 to improve broker transparency. OOIDA’s petition requested that brokers provide transaction information automatically within 48 hours of the completion of contractual services and that brokers be prohibited from including any contract provision that requires a carrier to waive its rights to access the transaction records.
SBTC also wants brokers to be prohibited from requiring carriers to waive their rights to review transaction records and wants FMCSA to adopt new regulatory language stating that broker contracts cannot exempt brokers from having to comply with transparency requirements.
“It is absolutely unacceptable that the broker rate transparency rulemaking the SBTC – and then OOIDA 10 days later – requested from FMCSA in May of 2020, which FMCSA promised us they would move forward with in March of 2023, will now not start until October of 2024,” SBTC Executive Director James Lamb told FreightWaves.
“We believe big 3PL brokers that are contractually waiving truckers’ transparency rights are engaged in evasion of regulation with impunity, at best, and a market manipulation scheme that constitutes unreasonable restraint of trade contrary to America’s antitrust laws at worst.”
The changes sought by truckers came at the onset of the COVID-19 pandemic, when too many trucks were chasing too little freight — and brokers were being accused of taking a bigger share of the rates than they deserved. Then-President Donald Trump sided with truckers during a rally outside the White House.
“As freight rates have declined throughout 2023, we have heard small-business truckers voice their frustrations about broker fraud,” Spencer said in a letter to FMCSA Administrator Robin Hutcheson in August, asking for a status update on the rulemaking.
“We understand that not all low rates are the result of unscrupulous brokers, but it can be difficult for carriers to identify legitimate brokers with the ineffective transparency regulations currently in place.”
The Transportation Intermediaries Association, which represents brokers, has objected to the carriers’ petition at the outset, asserting it is based on an antiquated legal provision.
“The marketplace is vastly changed since the 1980’s; the meaning of the regulation cited to justify a rulemaking is being stretched beyond recognition, and certainly beyond its original intent,” TIA Vice President of Government Affairs Chris Burroughs told FreightWaves.
“TIA members came to DC yesterday to meet with members of Congress to educate them on the role of the 3PL today, the need for a robust carrier registration process at FMCSA and increased enforcement against a surge in fraud. We will continue to push for common sense regulations that help the efficient movement of freight and that do not create winners and losers among legitimate freight stakeholders.”
Rulemakings on speed limiters, ADS, AEBs updated
In addition to broker transparency, DOT provided agenda updates to several other FMCSA rules and proposed rules.
A supplemental notice of proposed rulemaking mandating speed limiters on trucks weighing over 26,000 pounds equipped with an electronic engine control unit (ECU) has been delayed six months, from its original date of June 30 to Dec. 29.
While a speed limit has not yet been set, many believe FMCSA will likely be targeting 68 mph as a top speed required to be maintained by ECUs.
Also delayed — by almost a year — is a long-awaited NPRM on integrating automated driving systems (ADS) into commercial motor vehicles. Originally scheduled to be rolled out in January, FMCSA has pushed the rulemaking back to Dec. 29.
Proposed changes to trucking operations, inspection, repair and maintenance regulations “prioritize safety and security … and recognize the difference between human operators and ADS,” according to the NPRM’s summary.
DOT’s agenda also sets a date of April 30, 2024, for a final rule on automatic emergency braking (AEB) systems, to be issued jointly by FMCSA and the National Highway Traffic Safety Administration.
The final rule follows an NPRM issued in July, which generated comments from those concerned that timelines mandating AEBs for large long-haul trucks and smaller work trucks should be different based on testing data.
Absent from the new agenda is a date set for a formal rulemaking requiring side underride guards on trailers. An advance notice of proposed rulemaking was published in April, which was followed by an extended comment period that ended in July.
