An infrastructure bill published last year spurred the creation of these guidelines. They work to stop truck brokering companies who don’t receive FMCSA authority. Brokering without FMCSA authority cuts down on brokering businesses who have received FMCSA authority, they claim.

FMCSA agrees that dispatch services “can help to ensure the motor carrier has a steady stream of shipments,” which in turn allows them to focus efforts on moving freight. The specific way in which this is accomplished means the difference in having FMCSA authority, or not. Incumbent in all this discourse is the reality that when brokers get FMCSA authority, they must pay a $75,000 bond to protect their carriers.

To cut down on the confusion on if authority from the FMCSA is necessary or not, six clear guidelines were released. If the dispatch service: is involved in any monetary exchange between the broker or factoring company; accepts a truck/carrier-less shipment and then finds a truck/carrier to move the shipment; uses the carrier open market to move a freight shipment; directly interacts with the shipper or its representative to negotiate a shipment; forgoes any legal contract with the motor carrier that adheres to certain criteria and arranges a shipment; and is on the shipping contract.

If an unauthorized broker commits any of these violations, they will be charged $10,000 for each violation.

The clarification did not stop with these six guidelines. The FMCSA, mandated by Congress, had to clarify the respective definitions of broker and bona fide agent. The only change the agency decided to make on the definition of broker was to include the importance of dealing with funds in transactions between shippers and motor carriers.

When money is exchanged between shippers and carriers, “a factor strongly suggests the need for broker authority … it is not an absolute requirement for one to be considered a broker,” the agency said.

The FMCSA clarified that they disagree with the ascension of some agencies that to be considered a bona fide agent can represent just one carrier.

“… Representing more than one motor carrier does not necessarily mean one is a broker rather than a bona fide agent,” the agency said.

The agency continued in their clarification of a bona fide agent.

“Any determination will be highly fact specific and will entail determining whether the person or company is engaged in the allocation of traffic between motor carriers,” the agency said.

The Transportation Intermediaries Association (TIA) vice president of government affairs, Chris Burroughs, said that the agency considered and applied the TIA’s suggestions.

“This is a positive first step, though TIA believes it should be the first and not final step as the number of unlawful brokerage activities continues to rise and these illicit dispatch services skirt registration and regulatory requirements,” Burroughs said. “TIA looks forward to continuing to work with the FMCSA on this important issue.”

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“We knew [getting denied] could be a possibility, and obviously we’re upset,” said Leland’s wife, Lisa Schmitt. “But hopefully we will resubmit our application by the end of the day. We’re looking at other options as well. We’re not dropping this. FMCSA has to reasonably address the reasons that the request was denied, and we feel they haven’t done that.”

Leland Schmitt, a truck driver based in Spring Valley, Wisconsin, submitted his exemption request in January. The request was for Schmitt to be exempt from the 10-hour consecutive off duty time requirement, the 14-hour consecutive duty clock requirement, and the 30-minute rest break. His motivation behind these requests were to decrease the risk of driver fatigue of his routes.

“The level of safety achieved by granting this exemption would be better than if complying with the regulations … because my body would receive the rest it needs, when it needs it,” Schmitt wrote. “This would be achieved because at the age of 50, I am able to recognize when my body needs rest and when I am safe enough to drive on the nation’s roadways. The level of safety under this exemption would be at least the same, if not more than it is now, based on my 30 years of safe driving experience.”

In defense of their rejection, the FMCSA concluded that he failed to prove that receiving the exemption would permit him to achieve a level of safety equal to or greater than what he could maintain sans the hours-of-service exemption. The full decision was published in the Federal Register on Nov. 9.

“Research studies demonstrate that long work hours reduce sleep and harm driver health, and that crash risk increases with work hours,” the agency wrote in their decision. “The HOS regulations impose limits on when and how long an individual may drive to ensure that drivers stay awake and alert and to reduce the possibility of cumulative fatigue.”

Nearly 700 people offered their comments on the exemption citing that the agency granting exemptions from the requirements Schmitt requested would result in conflict with other HOS regulations. The agency agreed that “it could open the door for a huge number of similar exemption requests. Such a result would be inconsistent with a primary goal of the HOS regulations.”

Lisa Schmitt firmly believes the request for exemption would increase the safety of her husband’s routes. With the current HOS regulations, a driver can be operating on the road for a maximum of 13 hours in one 24-hour day.

“We’re only asking to drive 11 in a 24-hour period,” Lisa Schmitt said. “So, if we’re driving less hours in a day, how can we be less safe.”

She continued in saying that FMCSA made a mistake in publicly acknowledging that permitting Leland’s exemption request would create hundreds of other requests from other drivers.

“They opened the floodgates themselves by publishing an application that meets none of the exemption criteria [in the regulations],” she said about a different HOS exemption request filed this year.

Leland Schmitt hasn’t driven a rig for work since April. High fuel costs and raised insurance costs paired with the stringency of the HOS’s rules led him to step back from driving. The couple is ready to get back in the driver and passenger seats, respectively.

“We came home, took the summer off and stocked up the pantry. But we want to go back on the road,” Lisa Schmitt said.

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The first FMCSA proposed rule deals with integrating Automated Driving Systems (ADS) into commercial vehicles. This rule has been included in the FMCSA’s notice of proposed rulemaking (NPRM) and its approval status is defined by it being included in the NPRM. Its projected publication date is Jan. 18, 2023. This rule looks to amend FMCSA regulations to better handle the advancement of ADS equipped motor vehicles on U.S. highways.

“The proposed changes to the CMV operations, inspection, repair, and maintenance regulations prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped CMVs, and recognize the difference between human operators and ADS,” according to DOT.

The FMCSA, in conjunction with the National Highway Traffic Safety Administration (NHTSA), also proposed a rule dealing with automatic braking systems in cases of emergency. As with integrating ADS in commercial vehicles, this rule’s status is defined by it being included in the NPRM. Its projected publication date is Jan. 30, 2023. The automatic emergency braking (AEB) systems would standardize braking equipment for heavy trucks.

“The rulemaking is expected to propose performance standards and motor carrier maintenance requirements for AEB systems on heavy trucks and accompanying test procedures for measuring the performance of the AEB systems in NHTSA compliance testing,” according to the DOT.

There is a separate proposed rule, projected publication as June 30, 2023, that considers speed limiters for heavy vehicles. This rule was included in the supplemental notice of proposed rulemaking (SNPRM) and was introduced in September 2016, in collaboration with the NHTSA. The SNPRM considers if additional requirements should be issued for commercial motor vehicle. The rule proposes that any CMV with a weight of 11,794 kilograms or more (26,001 pounds or more) that also has an electronic engine control unit, should have speed limiters that regulate the truck’s speed. The speed is to be determined by the FMCSA’s rulemaking.

Moving on from automated systems, the FMCSA proposed a rule which handles the fiscal responsibility of broker and freight forwarders. This rule’s stage is defined as being included in the NPRM and Jan. 25, 2023, is its projected publication date. This rule will deal eight separate areas of fiscal responsibility including but not limited to: group surety bonds, surety or trust responsibilities if a broker or freight forwarder encounters fiscal failure, suspension of broker or freight forwarder authority, assets being readily available, overall enforcement authority, and specific trust fund filings or revisions.

The final proposed rule handles safety fitness procedures, was included in the NPRM, and has a projected publication date of Jan. 30, 2023. With this rule the FMCSA is researching ways it could use data to rid roadways of unfit motor carriers. The FMCSA has intentions of receiving public comment on using data (both safety and inspection) to delineate a carrier’s ability to operate.

“The Agency would also seek public input on possible changes to the current three-tier safety fitness rating structure,” according to DOT.

The DOT has not committed to any specific publishing date for these rules. This is due, in part, to the lengthy process incumbent in rules being issued.

“Significant rules are essentially those that are likely to have high benefits or costs or are potentially controversial,” according to DOT.

Any rule proposed by a DOT agency must be reviewed and approved by both the secretary of transportation and the Office of Budget and Management.

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