SBTC Membership Surges in Aftermath of Petition to Secretary for Immediate Cease & Desist Order to 3PLs Evading 371.3 through contractual waivers
James Lamb
Executive Director, Small Business in Transportation Coalition (SBTC) @JimLambUSA
Over 50 truckers and small carriers have joined the SBTC and become proud dues-paying members over the past 24 hours right after we asked Secretary Buttigieg to IMMEDIATELY order the megabrokers to cease and desist from unlawfully evading regulation by waiving 49 CFR 371.3 in their contracts to deregulate themselves with impunity. Independent Drivers can't wait 13 more months for FMCSA rulemaking without a moratorium order in the interim.
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"It is absolutely unacceptable that the broker rate transparency rulemaking the SBTC --and then OOIDA 10 days later-- requested from FMCSA in May of 2020, which FMCSA promised us they would move forward with in March of 2023, will now not start until October of 2024. We believe big 3PL brokers that are contractually waiving truckers' transparency rights are engaged in evasion of regulation with impunity, at best, and a market manipulation scheme that constitutes unreasonable restraint of trade contrary to America's antitrust laws at worst. USDOT and USDOJ must step in and immediately enforce the current regulations and evasion statute in the interim and stop this daily abuse. The megabrokers are not acting like brokers in any other industry, brokers who honorably and responsibly engage in the reasonable and customary practice of disclosing their commissions to their clients in advance. We implore Congress to now step in and pass the Transportation Intermediaries Accountability Act to terminate this unlawful activity and direct the Secretary and Attorney General to enforce the law."
JAMES LAMB,
SBTC EXECUTIVE DIRECTOR
September 27, 2023?????????????????????????????????????? Via US Mail & [email protected]
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The Honorable Pete Buttigieg
Secretary of Transportation
1200 New Jersey Ave SE,
Washington, DC 20590
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RE: ***PETITION*** from the SBTC for an Immediate Order Directed at all FMCSA-Regulated Property Brokers
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Dear Secretary Buttigieg:
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The SBTC has learned as per the Department's SEPTEMBER 2023 SIGNIFICANT RULEMAKING REPORT.v.3 referenced by Mr. Socci below that FMCSA will now not be engaging in the broker rate transparency "non-significant" rulemaking, which it previously promised SBTC and OOIDA on March 16, 2023 it would commence, until October 31, 2024.
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The SBTC shares the concerns expressed by OOIDA, copied here.
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Truckers in our circles are calling this now the #TrickOrTrickDate.?
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It appears either your Department does not appreciate the gravity of the current situation, or is downright insensitive to the plight of independent drivers. We have therefore blind copied certain US Senators, members of Congress, and transportation attorneys here.
1775 I. Street NW, Ste 1150, Washington, DC 20006 (202) 587-2751
The Honorable Pete Buttigieg
September 27, 2023
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This is a PETITION from the SBTC on behalf of its members to you pursuant to 49 USC 14701(b) requesting that you (1) immediately issue an order enforceable by you and/or the Attorney General (and privately enforceable under?49 U.S. Code § 14704 - Rights and remedies of persons injured by carriers or brokers) directing all FMCSA-regulated property brokers who have received, receive, or will receive in the future during the pendency of the SBTC's petition for 371.3 rulemaking requests to review records from shippers, interstate for-hire motor carriers of regulated commodities, and/or independent truckers who are parties to brokerage-involved transactions pursuant to 371.3 to make those records available for inspection in accordance with your regulations; and (2) to cease and desist from attempting to evade regulation in terms of shippers and carriers' duly-promulgated rights to review brokers' transactional records, grounded in nearly 75 years of regulatory wisdom, under 49 CFR 371.3, in violation of 49 U.S. Code § 14906.
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We request you please process this request promptly and immediately act before the three-year automatic expiration clause in the law in furtherance of your obligations under the Administrative Procedure Act, specifically 5 U.S. Code § 555 - Ancillary matters ("With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it"), and pursuant to the spirit of 49 USC 13904(e) (Regulation to Protect Motor Carriers and Shippers.— Regulations of the Secretary applicable to brokers registered under this section shall provide for the protection of motor carriers and shippers by motor vehicle), and generally, the National Transportation Policy:
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49 USC §13101. Transportation policy
(a) In General.-To ensure the development, coordination, and preservation of a transportation system that meets the transportation needs of the United States, including the United States Postal Service and national defense, it is the policy of the United States Government to oversee the modes of transportation and-
(1) in overseeing those modes-
(A) to recognize and preserve the inherent advantage of each mode of transportation;
(B) to promote safe, adequate, economical, and efficient transportation;
The Honorable Pete Buttigieg
September 27, 2023
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(C) to encourage sound economic conditions in transportation, including sound economic conditions among carriers;
(D) to encourage the establishment and maintenance of reasonable rates for transportation, without unreasonable discrimination or unfair or destructive competitive practices;
(E) to cooperate with each State and the officials of each State on transportation matters; and
(F) to encourage fair wages and working conditions in the transportation industry;
(2) in overseeing transportation by motor carrier, to promote competitive and efficient transportation services in order to-
(A) encourage fair competition, and reasonable rates for transportation by motor carriers of property;
(B) promote efficiency in the motor carrier transportation system and to require fair and expeditious decisions when required;
(C) meet the needs of shippers, receivers, passengers, and consumers;
(D) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public;
(E) allow the most productive use of equipment and energy resources;
(F) enable efficient and well-managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions;
(G) provide and maintain service to small communities and small shippers and intrastate bus services;
(H) provide and maintain commuter bus operations;
(I) improve and maintain a sound, safe, and competitive privately owned motor carrier system;
(J) promote greater participation by minorities in the motor carrier system;
(K) promote intermodal transportation;
(3) in overseeing transportation by motor carrier of passengers-
The Honorable Pete Buttigieg
September 27, 2023
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(A) to cooperate with the States on transportation matters for the purpose of encouraging the States to exercise intrastate regulatory jurisdiction in accordance with the objectives of this part;
(B) to provide Federal procedures which ensure that intrastate regulation is exercised in accordance with this part; and
(C) to ensure that Federal reform initiatives enacted by section 31138 and the Bus Regulatory Reform Act of 1982 are not nullified by State regulatory actions; and
(4) in overseeing transportation by water carrier, to encourage and promote service and price competition in the noncontiguous domestic trade.
(b) Administration To Carry Out Policy.-This part shall be administered and enforced to carry out the policy of this section and to promote the public interest.
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Simply stated, independent truckers and owner operators will not survive another year without you issuing an immediate moratorium order on brokers' unlawful practice of deregulating themselves through contractual waivers. There is sufficient case law that has established that regulated entities cannot contractually waive Federal law or regulations absent specific Congressional authority to do so (Hayes v. Delbert Services Corp 811 F.3d 666 (4th Cir. 2016)"...Delbert seeks to avoid federal law through the prospective waiver of federal law provision found in the arbitration agreement. But that provision is simply unenforceable. With one hand, the arbitration agreement offers an alternative dispute resolution procedure in which aggrieved persons may bring their claims, and with the other, it proceeds to take those very claims away. The just and efficient system of arbitration intended by Congress when it passed the FAA may not play host to this sort of farce." )
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USDOT needs to understand that independent truckers are not going to make it to November 2024 when you start a one-year rulemaking, at best. They are not going to be in service to the supply chain by the time FMCSA gets to this and is done. With the mass exodus of capacity, consumer prices will skyrocket even further once the supply chain is dominated by the large carriers through an oligopoly.
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领英推荐
There needs to be INTERIM ENFORCEMENT and an EMERGENCY MORATORIUM ORDER issued by USDOT on use of evasive waivers by brokers to deregulate
The Honorable Pete Buttigieg
September 27, 2023
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themselves with impunity and stop them from relying on and enforcing any waivers in previous contracts. Unless you immediate do this, you have essentially licensed the megabrokers to evade regulation by default. Furthermore, this delay presents public safety issues in that as truckers try to continue to serve the supply chain, they will not be able to afford to operate at low rates with unknown amounts secretly skimmed off the top by noncompliant 3PLs violating your regulations and with high diesel prices and inflated maintenance costs like tires. With rates as low as 54 cents a mile being offered by brokers as of April 2023, when we all know it takes now over two dollars a mile at a minimum these days to operate a truck, drivers simply cannot afford to both to feed their children and maintain safety as evidence by the statement of a driver made to the FMCSA Administrator on May 1, 2023 in this protest outside USDOT HQ and captured on video:
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So FMCSA either knows or should know that delaying the broker rate transparency rulemaking seriously and irresponsibly jeopardizes public safety contrary to the FMCSA's Motor Carrier Safety Mission and Congressional Mandate.
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Congress needs to know this as they consider FMCSA's continued funding.
Rather than go down the rabbit hold and work on rulemaking on speed limiters that will not likely withstand legal challenge and judicial scrutiny as Mr. Socci points out below, you should direct FMCSA to immediately process our May 2020 petition on broker rate transparency in the name of decency and public safety without further unreasonable delay.
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In the meantime, SBTC requests that your Department please acknowledge receipt of this petition and issue the requested order to brokers to comply with 49 CFR 371.3 forthwith.
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This email should be considered a petition open to the public to be widely disseminated by any and all interested parties in the public interest.
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Thank you.
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Sincerely,
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/s/JAMES LAMB
SBTC Executive Director
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cc: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]
EMAIL FROM SBTC CHALLENGING FMCSA's AUTHORITY ON SPEED LIMITERS:?
Sent:?Wednesday, September 27, 2023 at 11:08 AM
From:?"Laurence Socci" <[email protected]> To:?"[email protected]" <[email protected]>
Cc:?"James Lamb" <[email protected]>
Subject:?DOT September 2023 Significant Rulemaking Report Vol. 3
Good morning, Mr. Minor,
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This is in reference to the latest release of the Department's "SEPTEMBER 2023 SIGNIFICANT RULEMAKING REPORT.v.3" published at:
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Notwithstanding SBTC's disappointment regarding the continued delay of our petition for rulemaking on the broker rate transparency rulemaking now set for October 31, 2024 as expressed to the industry and public yesterday through?Freightwaves.com, SBTC would like to today ask FMCSA for the legal basis, under which, it intends to proceed with rulemaking on the speed limiter issue in December.
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SBTC notes that FMCSA commenced rulemaking previously on this issue in 2015 with NHTSA citing as FMCSA's legal authority:
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"FMCSA’s portion of this NPRM is based on the authority of the Motor Carrier Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act), both as amended. The two acts are delegated to FMCSA by 49 CFR 1.87(i) and (f), respectively."
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See:
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We note FMCSA did not cite any recent major legislative acts, including, but not limited to, SAFETY-LU, MAP-21 or the FAST Act, ect. as the basis for the Department's lawful authority, but instead suggested that authority is grounded in laws from 1984 and before.
However, on November 28, 1995, Congress passed the?National Highway Designation Act, which officially removed all federal speed limit controls and returned authority to set speed limits to the states.
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See:
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And for a history of Federal involvement in setting national speed limits:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2724439/#:~:text=In%201974%2C%20the%20federal%20government,roads%20in%20the%20United%20States.&text=The%20law%20was%20a%20response,was%20to%20reduce%20fuel%20consumption.
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SBTC therefore believes Congressional intent in 1995 overrides the legal authorities FMCSA previously cited in the dual agency 2015 iteration of speed limiter rulemaking.
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Please immediately advise us how FMCSA believes it currently has lawful authority to set maximum Federal speed limits for commercial motor vehicles and cite the relevant legislative authority passed after the National Highway Designation Act so that we may know how to proceed.
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Thank you.
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Sincerely,
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Laurence L. Socci
Laurence L. Socci, Esq.
Member of the District of Columbia Bar,
U.S. District Court Bar and D.C. Circuit Court Bar
(202) 262-5843