The Federal Motor Carrier Safety Administration sent its broker transparency rulemaking to the White House Office of Information and Regulatory Affairs on August 27, clearing the last internal checkpoint before publication. The move places a document that had already missed two target dates this year into the final stage of executive branch review. The listing shows the rule as pending review, with the stage recorded as a proposed rule, consistent with the supplemental notice FMCSA has carried on its agenda.

The rulemaking carries RIN 2126-AC63 and docket number FMCSA-2023-0257, and would amend 49 CFR Part 371, the section governing property broker records. The OIRA entry lists the rule as not economically significant and records no legal deadline.

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

Why the Timing Matters

The Unified Agenda entry for the rule listed a supplemental notice for July 2026; before that, the agency had targeted May. Trade coverage in early July reported the May date was missed and the target shifted to July, and through most of August the item still showed as pending with no published text.

The August 27 submission is the first concrete movement in the file since the comment period closed in March 2025. It reframes what had looked like an indefinite stall as a drafting period that has now ended.

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 order also allows OIRA to end 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.

What the Proposal Would Address

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 requested that brokers automatically provide an electronic copy of each transaction record 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 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 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. The dispute has practical weight because transaction records are the document that shows the gap between what a shipper pays a broker and what the broker pays the carrier — the margin at the center of the transparency debate.

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 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.

The Small Entities Classification

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 the legal authority for the rulemaking as not yet determined — an unusual designation for an action that has already produced a published proposal.

The Record Behind It

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 carries 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 Changes for Carriers Now

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 face a decision in the interim about whether to request a meeting with OIRA while the text is still under review. The OIRA review listing itself is public on the administration's regulatory review dashboard, so the disposition — whether the rule clears or is returned — will be observable when it occurs.

Why It Matters

The proposal moving to OMB 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, not a rule, so the practical terms governing access to transaction records remain at least a full comment cycle and a final rulemaking away from changing.

Source: FreightWaves