Truckers, brokers express views during FMCSA’s broker listening session

Stakeholders put in their 2 cents’ worth on broker transparency during the Federal Motor Carrier Safety Administration’s broker listening session on Wednesday.

On Wednesday, Oct. 28, FMCSA hosted a virtual broker listening session to obtain views from the public. Specifically, the administration is seeking input on the regulation of property carrier brokers in general, and on three pending petitions concerning specific property carrier broker regulation issues. A petition filed by the Owner-Operator Independent Drivers Association is among those petitions.

During opening remarks of the broker listening session OOIDA President Todd Spencer emphasized the importance of broker transparency regulations.

“Recordkeeping and transparency requirements have been a central component of broker regulations since their inception and were written to serve the greater public interest,” Spencer said. “Ever since Congress first called for broker regulations 85 years ago, the objective has been to protect the public’s interest in an adequate, economical and efficient transportation system free from unjust discrimination and destructive competitive practices of unscrupulous middlemen. Therefore, as part of the agency’s mandate to ensure that brokers do not avoid their legal responsibilities by contract, or imposing unreasonable burdensome disclosure conditions, if implemented, FMCSA would not experience any new burdens by adopting the new provisions we are seeking.”

Opposing broker transparency rules, Chris Burroughs, vice president of government affairs for the Transportation Intermediaries Association, called OOIDA’s petition “a solution in search for problems.”

“TIA strongly opposes the OOIDA and SBTC petitions that would codify burdensome regulations that will negatively impact carriers, brokers and the general public,” Burroughs said. “These petitions came to fruition because of a temporary economic downturn that upended the supply chain because of a global pandemic. Let me be crystal clear, this was not broker price fixing or price gouging. This is an attempt to undermine the free market.”

Both brokers and truckers chimed in during the broker listening session to express their views on broker transparency regulations.

Brokers focused their comments on the free market and protection of trade secrets/confidential information. They claimed there is more transparency than the regulations already call for. One broker, who went by the name Dave W., expressed some of those views.

“The notion that a vendor has the legal right to see the contracts of his customer is unheard of and unreasonable to the extreme,” Dave said. “Like all forms of free market commerce, no broker is forcing any carrier to take any loads. It is always the choice of any carriers to try to find shipping customers of their own. Carriers have options in the supply chain, options to choose their broker and options to opt out of utilizing a broker altogether.”

Meanwhile, truckers drew from their own experiences to emphasize their point. OOIDA member Bill McKelvie said that despite what brokers are claiming, he and many other drivers have experienced a different reality.

“Those of us, like myself, in the industry, we have heard, we have seen, we have experienced the double brokering, the false quotes, the inflated prices from the broker to the shipper and by the time we get it,” McKelvie said. “This federal regulation was meant to protect the trucker, the shipper and the end-user, who is the consumer.”

FMCSA’s broker listening session comes after OOIDA filed a petition for rulemaking to amend certain requirements for brokers.

Specifically, OOIDA wants FMCSA to require brokers to provide an electronic copy of each transaction record automatically within 48 hours after completion of the contractual service. The petition also wants FMCSA to explicitly prohibit brokers from including any provision in their contracts that requires a motor carrier to waive its rights to access the transaction records.

On the other hand, TIA’s petition calls for the complete elimination of the regulation. Instead, the broker association wants FMCSA to develop guidance on what legally constitutes a “dispatch service.”

Anyone who could not make the broker listening session can still submit comments by going to Regulations.gov, entering the docket number FMCSA-2020-0150 in the “Keyword” block and clicking “Search.” From there, click on the “Comment Now!” button. Additionally, FMCSA recommends that you include your name, email address, or phone number in the body of your document. The deadline is Nov. 18. As of Oct. 28, nearly 1,200 comments are on the docket. LL