The Federal Motor Carrier Safety Administration has again left truckers hanging on regulatory action to amend 49 CFR 371.3, which requires brokers to keep records of transactions and enshrines carriers’ right to review the records.
FMCSA in it’s September 2023 regulatory agenda update, reiterated in this year’s as well, promised action on a Notice of Proposed Rulemaking by October, 31, 2024. As of November 1, 2024, no such action has been posted to the Federal Register, not even a notice of delay.
This most recent unexplained delay follows years of petitions.
The Owner-Operator Independent Drivers Association first petitioned FMCSA to improve broker transparency in May 2020, requesting that brokers be required to provide transaction information automatically within 48 hours of the completion of contractual services and that brokers be prohibited from including any provision that requires a carrier to waive their rights to access the transaction records.
Said OOIDA President Todd Spencer, “It’s inexplicable that the FMCSA continues to shirk its basic responsibility and again is kicking the can down the road on a regulation that has been required since 1980. The 150,000 small business truckers OOIDA represents have a simple message to FMCSA: do your damn job!”
FMCSA didn’t respond to Overdrive queries about the delay.
The Biden Administration’s Spring 2023 Unified Regulatory Agenda projected that a notice of proposed rulemaking (NPRM) regarding Transparency in Property Carrier Broker Transactions would be published in June of that year, but nothing ever came of it.
OOIDA has continued to inquire about updates on enforcing 371.3, to no avail. In September of 2023 when FMCSA delayed action another year, Spencer called the continued delay “BS — transparency has been required since 1980,” referring to the Motor Carrier Act of 1980.
FMCSA has taken singular action enforcing the transparency requirement in two known instances involving fraud or payment disputes, once with a TQL load and once with an Uber Freight load.
FMCSA has refused to elaborate on the logic behind this piecemeal approach when questioned by Overdrive, but it’s also publicly continued to signal its intent to act. In a March 2023 letter to OOIDA, FMCSA told the association it had “determined that OOIDA’s petition contains adequate justification to initiate rulemaking on this matter,” according to the letter, addressed to OOIDA’s Todd Spencer and signed by then-FMCSA Administrator Robin Hutcheson.
Since OOIDA’s initial petition in 2020, as well as protests at the White House calling for transparency, fraud in brokered freight markets has ballooned..
Around 3 out of every 4 owner-operators, according to Overdrive polling, strongly favor more ready access to the transparency the 371.3 regulation enables.
One prominent broker who spoke with Overdrive laid out his reasons for not supporting action on the transparency rule.
[Related: Broker margins, rates data, transparency: What owner-operators really think]