SBTC'S STATEMENT ON PROPOSED FMCSA BROKER TRANSPARENCY RULEMAKING...

FMCSA states today in their Broker Rate Transparency Rulemaking Notice:

"In their petitions, both OOIDA and SBTC sought an explicit ban on waivers of the requirements in 371.3(c). However, as a general principle, parties are permitted to waive any right unless Congress, by statute, specifically makes a right non-waivable. The Agency has not identified any statutory provision in which Congress expressly barred waivers in this context, and therefore the Agency has not included the requested language in the revised regulation."

While the proposed rule does not include an express prohibition against contractual waivers, it states:

"By phrasing the requirement as a private “right to review,” the original regulation did not prohibit a broker from requiring a waiver of the private “right to review” as a condition of brokering a load to a motor carrier and did not contain an enforcement mechanism for the Agency to enforce the private “right to review.” However, FMCSA believes the original wording did not adequately capture the ICC’s intent that brokers continue to comply with those duties and obligations, particularly disclosure of such records to shippers and motor carriers who find value in such information. To address these concerns, FMCSA has reframed the disclosure requirement as a regulatory obligation, as the Agency believes this more closely aligns with the original intent of the regulation. Moreover, a regulated entity must adhere to the regulations and cannot “disguise its regulatory obligations as contractual ones.” Taylor Energy Co. LLC v. United States, 975 F.3d 1303, 1306 (Fed. Cir. 2020)."

This was clearly affected by Robin Hutcheson's departure. FMCSA has gutted our request while at the same trying to make an appearance of strengthening the rule.

They say transparency should be a duty of brokers, not a right of carriers, but that is semantics because they fail to connect all the dots and say this is a duty and trying to waive such a duty constitutes evasion of regulation. They cite the right case (Taylor Energy) but they should have asserted it in support for a new rule that says brokers cannot waive their duty.

This is too little too late and is disappointing. It preserves the status quo, which caters to Big Broker & TIA. There is no question now that FMCSA has been captured by Big Broker.

This part makes that clear:

"It is important to note that any shift away from the current practice of including waivers of § 371.3(c) may present economic disadvantages to brokers."

Truckers and carriers must now come out in droves and file comments in full force against this starting tomorrow and demand a prohibition against contractual waivers as they constitute Evasion of Regulation and Unreasonable Restraint of Trade.

They will be able to do so via our comment link: www.FreightBrokerTransparencyNow.com

#FreightBrokerTransparency

Proposed new 371.3 broker transparency rule:

§ 371.3 Records to be kept by brokers. (a) A broker must keep a record of each transaction. Such records must be maintained in an electronic format as described in § 390.32(d). For purposes of this section, brokers may keep master lists of consignors and the address and registration number of the carrier, rather than repeating this information for each transaction. The record must show: (1) The name and address of the consignor; (2) The name, address, and registration number of the originating motor carrier; (3) The bill of lading or freight bill number; (4) The amount of compensation received by the broker for each service performed in connection with each shipment, including freight charges, surcharges, and accessorial fees; the date of payment; and the name of the payer, including any business aliases, if known; and (5) Any penalties assessed in connection with each shipment. (b) Brokers must keep the records required by this section for a period of 3 years. (c) Brokers must provide, upon request by any party to a brokered transaction, a copy of the record of the transaction required to be kept by this section. Records must be provided electronically within 48 hours of the broker’s receipt of the request.