Potential broker-transparency rule not 'signficant,' yet FMCSA 'remains committed' to pursuit

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Updated Feb 16, 2024

The Federal Motor Carrier Safety Administration in a statement to Overdrive Tuesday confirmed that it is still working toward a brokered-freight transparency rulemaking this year.

The confirmation came after the rule was left out of the Department of Transportation's latest Significant Rulemaking Report that published Monday -- after it had been included in the previous report published in September.

Cicely Waters, FMCSA's Director of the Office of Communications, said, "FMCSA remains committed to initiating a rulemaking in 2024 concerning broker transparency." 

So why was the rule listed in the September Significant Rulemaking Report and not the February report? 

"FMCSA does not believe the forthcoming rulemaking notice is considered 'significant' under Executive Order 12866 and for that reason alone, the rulemaking was not included in the latest release of the DOT Significant Rulemaking Report," Waters said. It was included in the September report "only to provide an update on the rulemaking schedule because of an error in the Spring 2023 Unified Agenda; it was not an indication that that rulemaking was considered significant under the Executive Order."

Yet judging by the level of attention paid to anything having to do with brokered transaction transparency in Overdrive, many owner-operators might beg to differ on questions of significance here.

[Related: Brokered-freight rates transparency: Weigh in on these two questions]

With respect to that executive order, though, a "significant rulemaking" is one that is likely to result in a rule that may:

  • Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
  • Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
  • Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
  • Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the executive order.

To answer the question I posed in yesterday's article headline -- "Did FMCSA just end the fight over broker transparency?" -- no, the fight continues, and owner-operators and others in trucking will wait for the wheels of the regulatory agencies to turn. FMCSA still anticipates publication of a notice of proposed rulemaking by October 2024, according to the Fall 2023 Unified Agenda.

[Related: Did FMCSA just end the fight over broker transparency?]

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