FMCSA Proposes Stronger Broker Transparency Rules

In November 2024, the Federal Motor Carrier Safety Administration (FMCSA) proposed tightening the rule that lets motor carriers and shippers see a property broker's records of their transactions. The notice of proposed rulemaking, published on November 20, 2024, would amend 49 CFR 371.3, "Records to be kept by brokers." Comments were due by January 21, 2025, under docket FMCSA-2023-0257.

Where it came from

The proposal answered two 2020 rulemaking petitions, one from the Owner-Operator Independent Drivers Association (OOIDA) and one from the Small Business in Transportation Coalition (SBTC). Both argued that brokers routinely put clauses in contracts requiring carriers to waive their right to review transaction records, undercutting the transparency the rule was meant to provide.

FMCSA asked for public comment on the petitions in August 2020 and received 1,391 comments. It granted both petitions on March 16, 2023, while making clear the eventual proposal would not necessarily include the changes the petitioners wanted.

In the notice, FMCSA said it had heard through listening sessions and comments from carriers that broker transparency was rare in practice.

Four proposed changes

FMCSA proposed to:

• require brokers to keep their transaction records in electronic form, so carriers and shippers could review them remotely rather than only at a broker's principal place of business;
• drop the older distinction between brokerage and non-brokerage services, and require records to show, for each shipment, all charges and payments with a description, amount and date, plus any claims such as damage or delay claims;
• reframe the rule from a right of the parties to review records into a regulatory duty on brokers to provide them;
• require brokers to provide the records within 48 hours of a request from a party to the transaction.

What it did not do

FMCSA did not propose an outright ban on waiver clauses, which both petitions had sought. The agency said parties can generally waive a right unless Congress has made it non-waivable, and it had found no statute that did so here. It said it expected that framing the rule as a duty on brokers might reduce how often waivers were used.

The agency also considered and rejected automatic disclosure of records after every load, which OOIDA had requested, a phased rollout, and a longer deadline than 48 hours. It said automatic disclosure would be too burdensome for brokers.

Costs and rates

FMCSA said it believed the cost would be minimal, because most brokers already kept electronic records containing the required information. It did not expect the rule to be economically significant.

On rates, the agency said other market factors were likely to dominate, though it did not rule out that carriers and shippers might use the records to negotiate better rates over time. It asked for more data on both points.

Related coverage

The proposal followed FMCSA's 2023 broker financial responsibility rule and earlier guidance on what counts as brokering, both covered in this archive. Unlike those, this proposal dealt with what information brokers must share with the parties to a load.

Archive: this article describes rules and events as of November 2024. Regulations may have changed since, so check the current rule before relying on it.