The Federal Motor Carrier Safety Administration (FMCSA) has reached a critical milestone in its long-standing effort to reform transparency requirements for property brokers. On August 27, the agency officially submitted its supplemental rulemaking on broker transparency to the White House Office of Information and Regulatory Affairs (OIRA). This submission marks the final internal checkpoint before the proposal is released for public comment, signaling that the FMCSA has concluded its drafting process—a move that effectively ends a period of regulatory stagnation that had seen the agency miss two previous internal deadlines this year.
The rulemaking, tracked under RIN 2126-AC63 and docket number FMCSA-2023-0257, aims to modernize 49 CFR Part 371, the section of the federal code that governs the records property brokers are required to maintain. While the submission to OIRA does not make the text of the rule public, it confirms that the agency has moved past the internal drafting phase and into the executive branch’s final review.
The Long Road to Reform: A Chronology
The path to this moment has been arduous and marked by significant industry pressure. The current regulatory push originated in August 2020, when the FMCSA first sought public comment on petitions filed by the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition (SBTC). These groups argued that the current lack of transparency in broker-carrier transactions leaves small-business carriers vulnerable to predatory practices.
Following the initial petitions, the agency issued a formal proposal on November 20, 2024 (89 FR 91648). This document outlined the FMCSA’s preliminary vision for change, requiring brokers to maintain transaction records in an electronic format and provide copies to carriers or shippers within 48 hours of a request. Furthermore, it sought to expand the scope of these records to include detailed breakdowns of freight descriptions, chargebacks, fees, and payment dates.
However, the rulemaking process did not move forward linearly. After receiving approximately 5,000 comments on the initial proposal, the agency reopened the comment period in February 2025 at the request of the SBTC. An additional 2,000 comments were filed by the time the window closed in March 2025. Since then, the file appeared to be in a state of suspended animation, with target dates in May and July 2026 coming and going without the publication of a supplemental notice. The August 27 submission to OIRA serves as the first concrete evidence that the agency has shifted from gathering information to finalizing a strategy.
The Core Conflict: What the Proposal Seeks to Address
At the heart of this regulatory battle is a conflict between the historical right of carriers to view transaction records and the modern reality of broker-carrier contracts. Under existing regulations (49 CFR § 371.3), brokers are required to keep records of each transaction, and parties involved in the shipment have a legal right to review those records.
However, industry advocates argue that these rights are frequently rendered toothless by contract clauses. Many brokers require carriers to waive their access rights as a condition of accepting a load. The petitions submitted by OOIDA and the SBTC specifically requested that the FMCSA:
- Mandate that brokers provide an electronic copy of transaction records automatically within 48 hours of service completion, eliminating the need for a formal request.
- Explicitly prohibit contract provisions that require carriers to waive their access rights.
- Bar brokers from coercing carriers into waiving these rights as a condition of doing business.
In the November 2024 proposal, the FMCSA acknowledged that its provisions did not fully align with these requests. The forthcoming supplemental notice is expected to address this gap, likely re-evaluating whether the agency should take a harder stance against the "waiver culture" that has become pervasive in the brokerage sector.
Furthermore, the agency has pushed back against the argument that modern "rate aggregation services" provide sufficient transparency. While these services help carriers determine market pricing, the FMCSA noted that such data does not identify the specific shipper, the actual bill of lading, or the specific fees and chargebacks applied to an individual load. Consequently, the agency maintains that these digital tools are not a substitute for the statutory requirement of a transparent transaction record.
Supporting Data and Regulatory Classification
A point of contention within the regulatory agenda is the FMCSA’s classification of the rule as "not economically significant." According to the agency’s entry, small entities are not expected to be disproportionately affected, and therefore, a formal regulatory flexibility analysis is not required.
This classification has raised eyebrows among stakeholders. Because the rulemaking was born from petitions by organizations representing small-business carriers, the argument that small entities are not impacted appears contradictory. However, the FMCSA maintains that for the purpose of the Regulatory Flexibility Act, the "regulated party" is the broker, not the carrier. Whether the broker population includes enough small businesses to trigger a formal economic impact study remains a subject of debate that will likely be revisited during the next public comment period.
Additionally, the agenda entry lists the legal authority for the rule as "not yet determined," a highly unusual designation for a regulatory action that has already seen a published proposal. Industry observers are waiting to see if this is merely an administrative oversight or a sign that the agency is refining the legal basis for its proposed mandates.
Implications for the Industry
The submission of the rule to OIRA initiates a review period governed by Executive Order 12866. This order allows for up to 90 days of review, though the agency head may request a 30-day extension. In practice, reviews for non-economically significant rules often conclude more quickly.
For the trucking industry, this period is a critical window. While the text remains confidential, OIRA is permitted to meet with outside parties—including representatives from carrier associations and brokerage groups—to discuss the pending rule. These meetings are logged publicly, providing a final opportunity for stakeholders to lobby the executive branch before the text is finalized for public comment.
It is important to emphasize that this move does not change the status quo for carriers today. Section 371.3 remains in effect as currently written, and contract-based waiver clauses remain subject to private litigation rather than federal regulation. No new obligations will fall on brokers until the final rule is published and the implementation period begins.
What Lies Ahead
The transition from an "indefinite stall" to a formal OIRA review is a major turning point. By opting for a supplemental notice, the FMCSA has signaled that it intends to provide a more robust and legally defensible final rule, albeit at the cost of significant time.
For the thousands of owner-operators and small carriers who have participated in the docket, the next step is the public release of the supplemental notice. This will reopen the comment period and force the agency to contend with the latest data and arguments. If the FMCSA moves to prohibit waiver clauses—a move that would fundamentally alter the balance of power in freight brokerage—the industry should prepare for significant pushback from brokerage interests, potentially leading to further legal challenges.
As it stands, the brokerage community and the carrier community remain deeply divided. The FMCSA’s decision to move this rule forward suggests that the agency recognizes the need for modernization in an industry where digital transactions have moved far ahead of 20th-century record-keeping requirements. The coming months will be decisive in determining whether the federal government finally provides the transparency that small carriers have been demanding for over six years. For now, all eyes are on the White House to see what emerges from the review process.
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