FMCSA Broker Transparency Rule Reaches White

The Federal Motor Carrier Safety Administration (FMCSA) sent its broker transparency rulemaking to the White House Office of Information and Regulatory Affairs (OIRA) on August 27. This move clears the last internal checkpoint before publication, advancing a document that had missed two target dates this year into the final stage of executive branch review.

The rulemaking, identified as RIN 2126-AC63 and docket number FMCSA-2023-0257, would amend 49 CFR Part 371, which governs property broker records. The OIRA entry lists the proposal as not economically significant and records no legal deadline for action. The submission confirms FMCSA has finished drafting the supplemental notice of proposed rulemaking.

The Path to Review

Reaching OIRA does not make the proposal public. The White House and other federal agencies examine the draft during this confidential review before it publishes in the Federal Register. The text remains confidential until it clears OIRA.

The Unified Agenda had listed a supplemental notice for July 2026, after previously targeting May. Trade coverage in early July reported the May date was missed. The August 27 submission is the first concrete movement since the comment period closed in March 2025.

Executive Order 12866 sets a review period of up to 90 days, which the agency head may extend once by 30 days. Reviews often conclude sooner. OIRA can also return a rule to the agency for reconsideration rather than clearing it. While a rule is at OIRA, outside parties may request meetings to discuss it.

Proposed Changes to Broker Records

The supplemental notice builds on a proposal FMCSA published on November 20, 2024. That document proposed requiring property brokers to keep transaction records in electronic format and to provide a copy to a motor carrier or shipper within 48 hours of a request. It proposed expanding the required contents of those records.

Petitioners had asked for more. The Owner-Operator Independent Drivers Association (OOIDA) requested that brokers provide an electronic copy automatically within 48 hours of the contracted service being completed. OOIDA also asked FMCSA to explicitly prohibit contract provisions requiring carriers to waive access rights. The Small Business in Transportation Coalition (SBTC) requested that FMCSA bar brokers from coercing parties to waive the right to review the record.

FMCSA acknowledged in the 2024 document that its provisions differed from what the petitioners requested. The underlying right is decades old. Section 371.3 has long required brokers to keep records and given each party the right to review them. The fight is over enforcement and waiver clauses in contracts.

In the 2024 proposal, FMCSA rejected an argument against the requirement. The agency concluded that aggregated market rate data is not a substitute for the transaction record because it does not identify specific parties or show fees on a particular shipment.

The Comment Record and Process

FMCSA drew roughly 5,000 comments on the November 2024 proposal. At SBTC's request, the agency reopened the comment period on February 18, 2025, which closed on March 20, 2025 after producing roughly 2,000 more comments. The combined docket runs close to 7,000 comments.

Rather than finalize the rule, FMCSA chose to prepare a supplemental proposal. A supplemental notice reopens public comment, placing any final rule at least one full comment cycle beyond the publication of the text now at OIRA. The process began when FMCSA sought comment on the two petitions on August 19, 2020.

Small Entity Classification and Next Steps

One line in the agenda entry states that small entities are not affected and that a regulatory flexibility analysis is not required. This finding relieves FMCSA of the obligation to analyze the rule's economic effect on small businesses. The rulemaking exists because OOIDA and SBTC petitioned for it, and both organizations represent small carriers.

The classification measures burden on the regulated party, which is the broker, not the carrier. The agenda entry also lists legal authority for the rulemaking as not yet determined.

For now, Section 371.3 stands as written. Waiver clauses remain a matter of contract. The next observable events are the conclusion of the OIRA review and publication in the Federal Register opening a new comment period. Carrier and broker organizations must decide whether to request a meeting with OIRA while the text is under review.