A second shot: Broker transparency comment period reopened

Life doesn’t always serve up second chances. If you missed the opportunity to file comments on the broker transparency proposal floated by the Federal Motor Carrier Safety Administration, your second chance starts today.

In an unusual move, FMCSA reopened the broker transparency comment period for another 30 days in a notice that published in the Federal Register on Tuesday, Feb. 18. While it’s not uncommon for comment periods to be extended at the request of stakeholders, it is rare that one reopens.

In case you missed it

In November 2024, FMCSA issued a notice of proposed rulemaking that aims to strengthen existing broker transparency regulations. These regulations have been on the books since the 1980s but are often not enforced.

FMCSA’s broker transparency proposal includes four main provisions:

• It requires brokers to keep their records in an electronic format.
• It requires that records contain information about charges and payments connected to the shipment, including a description, amount and dates, as well as any claims connected to the shipment.
• It affirms that brokers have a regulatory obligation to provide transaction records.
• It requires brokers to provide an electronic copy of records within 48 hours after a carrier makes a request.

The initial proposal prompted a 60-day comment period that ended Jan. 21. According to the Regulations.gov website, FMCSA received more than 4,800 comments.

That number will now increase, as the public has been given another month to weigh in on FMCSA’s proposal. The new comment period is scheduled to run through March 20.

OOIDA supports transparency

On Jan. 21, the Owner-Operator Independent Drivers Association filed its comments in support of the proposal while also asking the agency to strengthen it further.

OOIDA represents all truck drivers – owner-operators and company drivers – and has advocated for transparency in broker-carrier dealings for decades.

“OOIDA has long pushed for greater transparency in transactions with brokers and supports FMCSA’s initiative to bring overdue improvements to broker regulations,” the Association wrote in comments signed by President Todd Spencer. “OOIDA supports the notice of proposed rulemaking’s intent along with many of its technical provisions. However, FMCSA must strengthen the rulemaking by clarifying how they will enforce the rules and closing all loopholes that let brokers waive transparency rights.”

What others are saying

During the previous 60-day comment period, thousands of individual truckers also submitted comments. Many of them supported the proposal and asked for basic fairness.

“I strongly support broker transparency and want it to be so that brokers must provide all details of aspects of the transaction, including transparency and timeliness related to claims. In many cases, claims are fraudulently made by brokers without (them) providing an ounce of supporting documentation to the claim,” Earl Brock said in his formal comments.

Doug Ambeau said broker transparency will lead to equitable compensation for truckers without cutting into the fair share of brokers.

“As an owner-operator, I believe rate transparency is crucial for a fair and equitable marketplace. Transparency ensures that carriers, who face significant operational costs, are adequately compensated for their services. Transparency does not dictate broker earnings but ensures carriers have the information needed to make informed decisions. Brokers’ claims of unsustainable margins are unfounded. Reasonable markups will not be threatened by transparency but will instead encourage equitable competition,” Ambeau wrote in his comments.

While the broker transparency regulations are already on the books, there are those who are pushing back against the concept.

“This rule represents a gross overreach by the government into private business practices. What other business-to-business industry mandates that one party disclose their margins to their vendors? Of course, vendors in any industry would love to know their buyers’ margins; it would give them tremendous leverage. But that’s not how America works,” Ryan Sienko wrote in his comments. “Mandating such disclosures is contrary to the principles of free enterprise that underpin our economy. What industry wouldn’t be destroyed or severely damaged by government intervention requiring them to disclose margins? This proposal sets a dangerous precedent that undermines the foundation of competitive markets.”

The Transportation Intermediaries Association – the group representing brokers – came out swinging hard at the FMCSA proposal.

The group called the proposal “un-American” and said the rule has no place in “today’s highly transparent marketplace.”

A second bite at the apple

On Jan. 19, the Small Business in Transportation Coalition requested that FMCSA extend the comment period between 14 and 30 days due to the level of public interest in the topic of broker transparency.

OOIDA and SBTC petitioned the agency in 2020 to launch a rulemaking on broker transparency. Both organizations requested that FMCSA prevent brokers from asking carriers to waive their rights to access the transaction records.

“Other potential commenters to the notice of proposed rulemaking may benefit from an extension as well,” FMCSA wrote in the notice.

The agency said it would consider all comments received by the Jan. 21 deadline as well as the new comments before determining whether to move forward with a final rule.

With the comment period reopened, the public can comment at the Fighting For Truckers website or by going to Regulations.gov and entering Docket No. FMCSA-2023-0257-0001. LL

Senior Editor Mark Schremmer contributed to this article.