A controversial proposed rule that would create more stringent broker transparency requirements is open for additional comments.

The Federal Motor Carrier Safety Administration announced on February 18 that the comment period for the November 2024 Notice of Proposed Rulemaking will remain open until March 20.

The proposal originally was published November 10, 2024, with the comment period ending on the last day of the Biden presidency.

FMCSA will also consider comments received between the original comment period end date of January 21, 2025, and the reopening of the comment period on February 18.

The agency said it received a request to reopen the comment period from the Small Business in Transportation Coalition and agreed to do so.

The proposal would revise property broker rules in response to petitions from the Owner-Operator Independent Drivers Association and the SBTC – petitions filed more than four years ago.

Those 2020 petitions asked that the FMCSA change regulations to require brokers to disclose (when requested by the carrier), among other items, amounts paid by the shipper to the broker for a shipment. 

The docket already contains nearly 5,000 comments. However, many of them share the same last name, and many are simply variations of “I agree,” or clearly following a cut-and-paste script, without any of the specific information FMCSA was looking for.

Why Owner-Operators and Small Fleets Want Changes to Broker Transparency Rules

Under current regulations, the parties to a brokered freight transaction have a right to review the broker's record of the transaction, which stakeholders often refer to as “broker transparency.” 

However, in reality that rarely happens, according to critics.

OOIDA said brokers often find ways of avoiding the federal regulations that require them to keep records of transactions and make them available to motor carriers. 

For instance, it’s such a common practice for broker contracts to waive the requirements that OOIDA said truckers often have no other choice if they want to haul a brokered load.

Another tactic is that brokers require a carrier to come to the broker’s office to see the records in person. If the broker is in Ohio and the truck owner is in California, that’s not realistic.

Rule Would Prevent 'Salami Slicing'

The National Owner Operators Association (a different organization than OOIDA), wrote expressing its “full support” for the rule change.

“The general freight brokerage sector currently suffers from systemic practices that disadvantage motor carriers, especially small owner operators," it said.

“A widespread issue we witness daily is when brokers engage in practices where small amounts of money — detention fees, accessorial charges, tracking fees, lumper fees, fuel surcharges, quickpay fees, appointment fees, layovers, tonu, chargebacks, or other compensations — are withheld from carriers. 

"This practice, often referred to as the 'salami slicing' scheme, disproportionately impacts small carriers operating on thin margins," the NOOA said in its comments.

“Many carriers hesitate to request transaction records due to fear of retaliation, such as being blacklisted from accessing future loads. Automatic disclosure would remove this risk, ensuring equitable treatment for all carriers.

“Carriers would no longer face prolonged disputes over withheld payments, as they would have immediate access to supporting documentation. As it stands currently, carriers are held liable for losses without knowing the financial stakes or details of the shipper’s invoice.”

FMCSA’s Proposed Broker Transparency Rule Would:

1. Require brokers to maintain records electronically so they would be easier to share. 

2. Revise the required contents of brokers’ records, including all charges and payments connected with the shipment, including a description, the amount, the date, and any claims associated with the shipment such as cargo damage.

3. Require brokers to provide records upon request. The current regulation frames the broker transparency requirement as a right to review the records. The proposed amendment would reframe it as a regulatory duty imposed on brokers.

4. Require brokers to provide the records within 48 hours when a party to the transaction requests those records.

Critics: Broker Transparency Proposal 'Unworkable,' 'Counterproductive'

J.B. Hunt, which in 2023 brokered roughly 1 million shipments to third-party carriers, called the proposal  “a misguided regulatory intervention into a marketplace that is naturally responding to the increases and decreases in freight demand and transportation capacity.

“To blame a tougher carrier rate environment on brokers, as proponents of the Proposed Rule do, is to ignore the basic fundamentals of supply and demand.”

As both a broker and a motor carrier, J.B. Hunt cited several examples where it said the proposed rule is unworkable. The rates paid by shippers in a multimodal operation such as J.B. Hunt’s don’t necessarily break out the truck portion of the transport vs. the rail portion.

In addition, J.B. Hunt said that under the proposal, disclosing rate information could breach the confidentiality clauses of its contracts with its shippers.

More than one entity identifying as a small motor carrier/broker filed nearly identical comments, including Montana-based Missouri River Logistics LLC and JH Livestock LLC.

“When the rates are high, there is ZERO push for this rule change. It is only when the demand is lower than supply that there is this demand for change.

“The carriers that are complaining live off the spot market & have few, if any, direct customers of their own. They don't understand that ALL sides of the transaction need to make a profit.”

The Truckload Carriers Association called the proposal counterproductive.

In the modern freight marketplace, it explained, the operational model is built on two distinct business transactions: one between the shipper and the broker and another between the broker and the carrier. 

“This separation ensures flexibility and allows each party to negotiate terms that best suit their operational needs. TCA firmly supports maintaining this model, emphasizing the importance of preserving the confidentiality of business agreements as a cornerstone of trust and efficiency within the industry.”

TIA: 'A Solution in Search of a Problem'

The Transportation Intermediaries Association, representing brokers and third-party logistics parties, submitted comments strongly opposed to the proposed rules.

“FMCSA’s amplification of what is already an outdated, unnecessary, and burdensome regulation is a solution in search of a problem,” it said.

The proposed rule, TIA said, “undermines competition and market efficiency, exposing confidential business data and associated strategies that drive innovation.

“FMCSA should focus its efforts on addressing highway safety and addressing the proliferating fraud pandemic in the supply chain, which is costing the U.S. economy over $1 billion annually.”

TIA also maintains that FMCSA is not authorized by Congress to promulgate this proposed rule in the first place.