Did FMCSA just end the fight over broker transparency?

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Updated Feb 16, 2024

Update: FMCSA responded January 30, 2024, to Overdrive inquiries to report the brokered-freight transaction transparency regulation it does continue to pursue wasn't included in the recent DOT Significant Rulemaking Report, despite previously appearing there, because it was not "significant" by terms of an Executive Order governing such rules. Read more via this link.

Original story follows. 

The Department of Transportation has released an updated Significant Rulemaking Report signifying potential publication dates for rulemakings by DOT agencies, and notably absent from the new report is a rulemaking on brokered-freight transaction transparency from the Federal Motor Carrier Safety Administration, which had been included in the previous report.

The Owner-Operator Independent Drivers Association, whose petition in part spurred FMCSA to pursue action on broker transparency in the first place, was not overly concerned about the exclusion of the rulemaking in the new report.

"Our understanding is that this is not unusual and that not all proposals go on these types of reports," said OOIDA Director of Public Affairs Norita Taylor. "We still are disappointed about the delay to October of this year and will continue to communicate all concerns about issues pertaining to brokers."

FMCSA has not yet responded to an inquiry from Overdrive regarding the agency's intentions to continue pursuit of the rule.

The previously scheduled action item was a response to separate petitions from OOIDA and the Small Business in Transportation Coalition to potentially provide greater transparency in brokered freight transactions.

OOIDA petitioned FMCSA to require brokers to provide an electronic copy of each transaction record automatically within 48 hours after the contractual service has been completed, and explicitly prohibit brokers from including any provision in their contracts that requires a motor carrier to waive its rights to access the transaction records.

SBTC requested that FMCSA prohibit brokers from coercing or otherwise requiring parties to brokers’ transactions to waive their right to review the record of the transaction as a condition for doing business, as well as to adopt regulatory language indicating that brokers’ contracts may not include a stipulation or clause exempting the broker from having to comply with the transparency requirement.

[Related: Carriers' right to review what the shipper paid for a brokered load]

Notably, the first public indication the agency would move on these issues with rulemaking came via a letter delivered almost a year ago to OOIDA and signed by then-FMCSA Administrator Robin Hutcheson. Hutcheson and FMCSA announced her resignation from that post just more than a week ago. 

On the other side of the transparency issue, the Transportation Intermediaries Association representing brokers has vowed to fight any proposal that would change broker transparency regulations, with TIA President and CEO Anne Reinke calling such a change “rate intrusion,” adding that it would drive rates down. Last year, FMCSA denied TIA's 2020 petition to remove the 49 CFR 371.3(c) transparency regulation entirely

FMCSA’s previous timeline for the rule’s publication was Oct. 31, 2024. Now, the rule isn’t listed in the report at all.

[Related: Brokered freight transparency: Weigh in via this snap survey]

Speed limiter rulemaking now expected in May

The report also indicated that FMCSA now expects to publish its supplemental notice of proposed rulemaking (SNRPM) on a motor carrier-based speed limiter mandate in May of this year

The previous rulemaking report published in September -- which first listed the maximum speed for the mandate at 68 mph before the agency backtracked to remove a specific speed -- indicated the speed limiter proposal would be published in December 2023.

FMCSA said its new proposal will require motor carriers operating trucks equipped with an electronic engine control unit (ECU) capable of governing the truck’s maximum speed to limit the truck to a speed as determined by the rulemaking and maintain that ECU setting for the service life of the truck.

The new SNPRM would supersede FMCSA’s joint proposal with the National Highway Traffic Safety Administration, which was made in 2016.

[Related: 68 mph? FMCSA backtracks after ‘inaccurate’ reveal of speed-limiter intentions]

Other regs in play on the calendar

Motor carrier operation of automated driving system-equipped vehicles. FMCSA plans to publish in March a notice of proposed rulemaking (NPRM) to amend regulations to ensure the safe introduction of automated driving system-equipped trucks onto the nation's roadways. The proposed changes to the operations, inspection, repair and maintenance regulations will be intended to prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped vehicles, and recognize the difference between human operators and ADS, the agency said.

[Related: Will autonomous trucks displace drivers? Congress holds hearing on impacts]

Automatic emergency braking. The joint final rule from NHTSA and FMCSA to propose to require automatic emergency braking (AEB) systems on trucks is still expected to be published in April -- the same timeline as the previous rulemaking report released in September. The proposed AEB rulemaking, as released last year, would require heavy commercial vehicles with FMVSS-required electronic stability control systems to be equipped with an AEB system.

[Related: Are FMCSA and NHTSA skirting Congressional directive with AEB proposal?]

New-entrant knowledge test. An SNPRM that would require a new-entrant knowledge test is also still set to publish by its previously proposed date -- July 2024. The rulemaking would consider methods for ensuring a new applicant carrier is knowledgeable about the applicable safety requirements before being granted New Entrant authority. The agency is considering whether to implement a proficiency exam as part of its revised New Entrant Safety Assurance Process, as well as other alternatives.

Safety rating revamp. Toward the end of last summer, FMCSA released an advance notice of proposed rulemaking (ANPRM) to gather feedback on potential changes to its carrier safety rating system, dubbed its “safety fitness determination” rule. The agency is now planning to release a notice of proposed rulemaking (NPRM) by July 2025, giving the agency potentially 18 more months before the rule’s publication.

FMCSA said its rulemaking will seek information on how it might use data and resources more effectively to identify unfit motor carriers and to remove them from the nation's roadways. FMCSA would seek public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate. The agency would also seek public input on possible changes to the current three-tier safety fitness rating structure. The action would also include a review of the list of Federal Motor Carrier Safety Regulations (FMCSRs) that the agency uses in its safety fitness rating methodology.

[Related: FMCSA making a run at revamp to carrier safety rating system]

NHTSA equipment rules. The National Highway Traffic Safety Administration also has rulemakings in the works that will impact heavy-duty trucks.

One such rule pertains to fuel efficiency and greenhouse gas standards that the agency is working on in concert with the Environmental Protection Agency. An NPRM is expected to be published in August related to efficiency standards for medium- and heavy-duty engines and vehicles.

NHTSA has also been working on a rulemaking to require side underride guards on trailers. The agency last year published an ANRPM seeking feedback on the benefits, costs and other impacts of side underride guards. The new rulemaking report does not list a date for the publication of an NPRM. Instead, the next date listed is October 2024 for “analyzing comments.”

[Related: NHTSA underride committee sets next four meetings]

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