Broker Transparency Rule Reaches White House Review After 18-Month Stall

When will brokers have to provide transaction records electronically?

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, clearing the last internal checkpoint before publication. The submission moves docket number FMCSA-2023-0257 (RIN 2126-AC63) into executive branch review for the first time since the comment period closed in March 2025. The rule would amend 49 CFR Part 371, the section governing property broker records, but no new obligation attaches to brokers until a final rule takes effect.

Reaching OIRA does not make the proposal public. The review is where the White House and other federal agencies examine the draft before it publishes in the Federal Register. The text remains confidential until it clears. What the submission establishes is that FMCSA has finished drafting, which is more than the Unified Agenda alone had shown.

What the Supplemental Proposal Would Require

The supplemental notice builds on the proposal FMCSA published on November 20, 2024 at 89 FR 91648. 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 to cover charges and payments tied to a shipment, a description of the freight, amounts and dates, and any claims.

The petitions that started the rulemaking asked for more. The Owner-Operator Independent Drivers Association (OOIDA) requested that brokers provide an electronic copy of each transaction record automatically within 48 hours of the contracted service being completed, without the carrier having to ask, and that FMCSA explicitly prohibit contract provisions requiring carriers to waive access rights. The Small Business in Transportation Coalition (SBTC) requested that FMCSA bar brokers from coercing or requiring parties to waive the right to review the record as a condition of doing business, and prohibit contract clauses exempting brokers from the requirement.

FMCSA acknowledged in the 2024 document that its provisions differed from what the petitioners requested. That gap is the substance a supplemental notice would be expected to revisit, and it is what makes the forthcoming text consequential rather than procedural.

The Underlying Right and the Enforcement Gap

The underlying right is decades old. Section 371.3 has long required brokers to keep records of each transaction and given each party the right to review the record. The fight is over enforcement and over waiver clauses that appear routinely in broker carrier contracts.

In the 2024 proposal, FMCSA also rejected an argument raised against the requirement. The agency acknowledged that rate aggregation services give carriers pricing information useful in deciding whether to accept a load, but concluded that such data is not a substitute for the transaction record, because aggregated market data does not identify the shipper, the carrier or the bill of lading on a specific shipment and does not show chargebacks or other fees assessed against a carrier on a particular delivery.

How Long OIRA Review Takes

Executive Order 12866 sets a review period of up to 90 days, which the agency head may ask to extend once by 30 days. Reviews frequently conclude sooner, and rules that are not economically significant often move faster than that ceiling. The OIRA entry lists the broker transparency rule as not economically significant and records no legal deadline.

The order also allows OIRA to conclude a review by returning the rule to the agency for reconsideration rather than clearing it, so submission is not the same as approval.

While a rule sits at OIRA, outside parties may request meetings with the office to discuss it. Those meetings are logged publicly and identify the participants. For the brokerage and carrier organizations that have spent six years on this file, the review window is the last opportunity to make a case before the text is fixed for public comment.

The Small Entity Classification Problem

One line in the agenda entry sits awkwardly against the origins of the rule. FMCSA states that small entities are not affected and that a regulatory flexibility analysis is not required. Under the Regulatory Flexibility Act, that finding relieves the agency of the obligation to analyze the rule's economic effect on small businesses or to weigh less burdensome alternatives for them.

The rulemaking exists because OOIDA and SBTC petitioned for it, and both organizations represent small carriers. Both framed their petitions around the economic position of small operators in brokered transactions, and the agency's own abstract describes them in those terms.

The classification is not necessarily inconsistent. Regulatory flexibility analysis measures burden on the regulated party, and the regulated party here is the broker rather than the carrier. Whether the affected broker population includes a meaningful number of small entities is a question commenters can raise once the text publishes.

The agenda entry also lists legal authority for the rulemaking as not yet determined, an unusual designation for an action that already produced a published proposal.

The Comment Record and the Supplemental Decision

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 at 90 FR 9702, and that reopening closed on March 20, 2025 after producing roughly 2,000 more. The combined docket runs close to 7,000 comments.

Rather than finalize on that record, FMCSA chose to prepare a supplemental proposal. That decision has a cost in time. A supplemental notice reopens public comment, which places any final rule at least one full comment cycle and one further round of review beyond publication of the text now at OIRA. The process began when FMCSA sought comment on the two petitions on August 19, 2020 at 85 FR 51145.

What Happens Next

Nothing yet. Section 371.3 stands as written. Waiver clauses remain a matter of contract and litigation rather than settled regulation, and no new obligation attaches to brokers until a final rule takes effect.

The next observable events are the conclusion of the OIRA review, which will appear on the same listing with a concluded date and a disposition, and then publication in the Federal Register opening the comment period. Carriers and broker organizations that want to shape the proposal have a decision to make in the interim about whether to request a meeting with OIRA while the text is still under review.

The proposal moving to OIRA is the first hard evidence in eighteen months that the broker transparency rulemaking is progressing rather than sitting, and it puts a public comment period within reach for the first time since March 2025. What clears that review will be a proposal rather than a rule, so the practical terms governing access to transaction records are still at least a full comment cycle and a final rulemaking away from changing.

What Carriers Should Do Now

Carriers waiting for automatic transaction record delivery or enforceable waiver prohibitions should not change their contract review or load acceptance procedures yet. The supplemental proposal will open a new comment period once it clears OIRA and publishes in the Federal Register. That comment period will run at least 30 days, likely longer. After comments close, FMCSA must review them, draft a final rule, and send that final rule back through OIRA review before any new broker obligation takes effect.

Carriers who want to influence the final text have two windows. The first is during OIRA review of the supplemental proposal, by requesting a meeting with the office. Those meetings are public record. The second is the comment period that opens after the supplemental proposal publishes. Both OOIDA and SBTC will likely file detailed comments again, and individual carriers can file through regulations.gov using docket number FMCSA-2023-0257.

Until a final rule publishes with an effective date, Section 371.3 remains the only enforceable standard. Brokers must keep transaction records and provide them on request, but no regulation yet prohibits waiver clauses or mandates automatic delivery.