Owner-operators want regulators to clamp down on brokers that violate federal record-keeping laws, but such violations seem to be extremely rare – at least according to government enforcement data.
Since fiscal year 2014, there has not been a single enforcement action or fine levied related to 49 CFR 371.3, the federal law covering financial record requirements of property brokers in the trucking industry, according to data compiled by the Federal Motor Carrier Safety Administration (FMCSA).
FMCSA records reveal that of the over 30,000 enforcement actions taken between September 2013 and April 2020 with regard to regulations administered by the agency, just one was levied against a commercial freight broker – a $2,000 fine in 2014 for a safety violation by a new applicant. There were also a few actions and fines imposed on brokers operating in the household goods sector.
The absence of 371.3 violations reported to FMCSA could suggest that a petition filed recently by the Owner-Operator Independent Drivers Association (OOIDA), which contends FMCSA is not adequately enforcing the provision, may lack merit.
OOIDA rejects that premise. “There’s no clear-cut way in the system to file these types of complaints in the first place, which may be part of the reason you don’t see evidence of violations,” OOIDA Executive Vice President Lewie Pugh told FreightWaves.
Pugh pointed out that it is not readily apparent how drivers looking to complain about a broker violating the 371.3 regulation can do so within FMCSA’s National Consumer Complaint Database.
“We realize some brokers might not like the regulations, but that doesn’t give them the right to blatantly skirt them without any recourse,” asserted OOIDA President and CEO Todd Spencer in petitioning FMCSA on the issue. “Brokers must no longer be given a free pass to avoid compliance with federal transparency requirements and those who continue to evade the regulations must be held accountable.”
Holding brokers accountable to transparency laws already on the books is just one part of OOIDA’s petition. The group also wants the FMCSA to improve the transparency required in 371.3 by proposing that it require brokers to provide an electronic copy of each transaction record within 48 hours.
“Given the fact that so many business transactions are now conducted and executed electronically, this requirement would improve transparency and prevent brokers from keeping their records only accessible in locations that could be thousands of miles away from their customers,” OOIDA states in its petition. “This would also prevent brokers from selectively retaliating against carriers that request this information. In other words, brokers would not be able to put carriers on a ‘Do Not Use’ list for simply exercising their rights.”
OOIDA is also asking FMCSA to prohibit brokers from including contract provisions that waive a carrier’s right to access transaction records – another means by which brokers can circumvent record-keeping requirements, the group contends.
Speaking at a webinar hosted by the Intermodal Association of North America in May, FMCSA Acting Administrator Jim Mullen confirmed that the agency has yet to receive a specific complaint about a violation of 371.3, urging that they be filed so that his agency can address them.
Mullen also confirmed that while FMCSA is considering putting out a “notice and comment” on OOIDA’s petition, the agency would have to determine whether it has the statutory authority to ban the types of waivers cited by OOIDA in contracts between brokers and carriers.
Mullen did not comment on an investigation into collision and price gouging by brokers against owner-operators – an allegation raised by drivers during demonstrations in April in Washington, D.C., as well as by President Trump, but denied by brokers as represented by the Transportation Intermediaries Association.
The U.S. Department of Justice (DOJ) declined to comment on reports of an investigation into broker price gouging. “Our policy is to never confirm or deny the existence of any investigation,” a DOJ spokesman told FreightWaves.
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