
Truck drivers’ opportunity to weigh in on the Federal Motor Carrier Safety Administration’s broker transparency proposal is almost over.
In November, FMCSA issued a notice of proposed rulemaking that aims to strengthen existing broker transparency regulations. Tuesday, Jan. 21 is the final day for the public to comment.
As of Thursday, Jan. 16, more than 2,300 comments had been submitted to the docket.
The majority of the comments have come from truck drivers who support the proposal and encourage FMCSA to take additional steps to promote fairness.
Broker transparency regulations have been on the books since the 1980s but are often not enforced. The Owner-Operator Independent Drivers Association, which filed a petition for FMCSA to start a broker transparency rulemaking in 2020, is encouraging all truck drivers to let the agency know why a rule is needed.
“The broker transparency proposal has been around for a long, long time,” OOIDA President Todd Spencer said. “This is one of the requirements that actually has been in federal regulations for over 40 years – over 40 years. It’s just never been complied with. We need to change that. This is our opportunity to do it. (OOIDA) can let everybody know what’s going on, but our words mean so much more if they’re backed up by your words and your real-world experiences … Your voice matters. Your opinions matter. Let’s work together to fix some of these issues. (Broker transparency) is one of the issues that needs to be fixed.”
FMCSA’s broker transparency proposal includes four main provisions.
Electronic format
The first provision would require brokers to keep their records in an electronic format. While seemingly obvious in 2025, the provision is necessary, as truck drivers have reported being told they could view the records only if they traveled to the broker’s office. The provision would make it easier for truckers to obtain the records.
“A lot of brokers, we know, are already doing that,” said Jay Grimes, OOIDA’s director of federal affairs. “This would hold everyone to that standard. It would eliminate a loophole that we see brokers use often that requires motor carriers to come visit their place of business to view only a physical hard copy of the records. Having them all electronic does away with that loophole.”
Necessary information
The proposal would require that records contain information about charges and payments connected to the shipment, including a description, amount and dates, as well as any claims connected to the shipment.
The current requirement uses a distinction between brokerage and non-brokerage services, which is rooted in a previous regulatory approach. FMCSA proposes eliminating this distinction and instead requiring specifics on what the records must obtain. This amendment aims to ensure the parties have full visibility into the payments, fees and charges associated with the transaction so they can resolve issues and disputes among themselves without resorting to costlier remedies.
Grimes said this provision was included so that a lot of this stuff can be resolved in a more efficient and more fair manner among carriers and brokers as part of the claims process, which we know is far too broken right now.
Regulatory obligation
The third provision would affirm that brokers have a regulatory obligation to provide transaction records. The current regulation frames the broker transparency requirement as a right, given to the transacting parties, to review the records. The proposed amendment would reframe broker transparency as a regulatory duty imposed on brokers to provide records to the transacting parties.
“It really shifts that regulatory obligation back to the broker side of things,” Grimes said. “We think that is an improvement upon some of the vague language that is currently on the regulation.”
Within 48 hours
The proposal requires brokers to provide an electronic copy of records within 48 hours after a carrier makes a request.
“That sets up a 48-hour window, which we think provides sufficient time on both the motor carrier and broker side to get this information in a timely way,” Grimes said.
Additional steps?
Overall, OOIDA said that the proposal makes improvements to the existing regulations.
“I think there are some positives there,” Grimes said. “Throughout the proposal, FMCSA makes it clear that the current system is unfair to carriers and creates advantages for brokers. They use a government term called ‘asymmetry of information’ where brokers are able to hide what they know and (that) sets up unfair negotiations between carriers, shippers and brokers.”
However, OOIDA also is advocating for the agency to strengthen the regulations even further.
As OOIDA included in its 2020 proposal, it wants FMCSA to prevent brokers from being able to ask carriers to waive the requirement and to provide the records within 48 hours automatically rather than upon request.
“We are disappointed to see that omitted from the proposal, but we certainly are going to make that case in our public comments,” Grimes said. “The other thing that is going to be really important is the automatic disclosure. That’s something we petitioned for where brokers had to automatically provide the records. They didn’t go quite that far … just to people who request it. We think that can be improved.”
OOIDA also plans to use its comments to encourage the agency to provide specifics on enforcement and penalties.
“They are relying on the current civil penalties that are already approved in Federal Motor Carrier Safety Regulations,” Grimes said. “And frankly, they don’t provide enough of a strategy exactly on how they’re going to improve enforcement. We’ve got a couple of ideas that we’re going to throw out there in our comments, too, because that’s really going to be the key if and when this rulemaking is finalized.”
How to comment
FMCSA will accept comments on the broker transparency proposal through Tuesday, Jan. 21. Comments can be submitted at FightingForTruckers.com or by going to Regulations.gov and entering Docket No. FMCSA-2023-0257-0001. LL
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