The Federal Motor Carrier Safety Administration has moved its broker transparency rulemaking to the White House Office of Information and Regulatory Affairs (OIRA), bringing a regulatory process that has been underway for six years to its final internal checkpoint before publication.
FMCSA submitted the proposal on August 27. The OIRA listing currently shows the action as pending review and classifies it as a proposed rule, consistent with the supplemental notice that has remained on the agency’s regulatory agenda.
The development is particularly significant because the proposal had already missed two target dates in 2026. The move to OIRA now provides the first concrete indication that FMCSA has completed its drafting process and that the rulemaking has entered the final stage of executive branch review before becoming public.
The action is identified under RIN 2126-AC63 and docket number FMCSA-2023-0257. It would amend 49 CFR Part 371, the section governing the records that property brokers are required to maintain. According to the OIRA entry, the proposal is not considered economically significant and currently has no legal deadline attached to it.
Why the timing matters
Reaching OIRA does not mean that the proposal has already been published. During this stage, the White House and other federal agencies review the draft before it can appear in the Federal Register. The text remains confidential throughout the review process.
What the submission does confirm, however, is that FMCSA has completed the drafting stage. Until now, the agency’s regulatory agenda provided limited visibility into the actual progress of the file.
The Unified Agenda listed July 2026 as the target date for a supplemental notice. Before that, FMCSA had aimed for May. Industry coverage in early July reported that the May target had been missed and moved to July, while the rulemaking continued to appear as pending for most of August without any published text.
The August 27 submission therefore represents the first tangible movement since the public comment period closed in March 2025. What had increasingly appeared to be an indefinite delay can now be understood as a drafting period that has reached its conclusion.
Under Executive Order 12866, OIRA reviews can last up to 90 days. The agency head may request a single extension of up to 30 additional days. In practice, many reviews conclude more quickly, particularly when a rule is not classified as economically significant.
Submission to OIRA does not automatically mean approval. The office may clear the proposal or return it to the agency for reconsideration.
During the OIRA review period, outside organizations can also request meetings with the office to discuss the proposal. Those meetings are publicly recorded and identify the participants. For broker and carrier organizations that have followed this issue for six years, the review period represents the final opportunity to make their case before the proposal is released for public comment.
What the proposal would address
The forthcoming supplemental notice builds on the proposal published by FMCSA on November 20, 2024, at 89 FR 91648.
That proposal would require property brokers to maintain transaction records electronically and provide a copy of those records to a motor carrier or shipper within 48 hours of receiving a request. It would also expand the information brokers must retain. The required records would include charges and payments associated with a shipment, a description of the freight, relevant amounts and dates, as well as any claims connected to the transaction.
However, the petitions that originally triggered the rulemaking sought broader protections.
The Owner-Operator Independent Drivers Association requested that brokers automatically provide carriers with an electronic copy of every transaction record within 48 hours after the contracted service had been completed. Under that proposal, the carrier would not need to submit a request.
OOIDA also asked FMCSA to explicitly prohibit contractual provisions requiring carriers to waive their right to access those records. The Small Business in Transportation Coalition made similar requests. The organization asked FMCSA to prevent brokers from coercing or requiring parties to waive their right to review transaction records as a condition of doing business. It also requested a prohibition on contract clauses designed to exempt brokers from the record-access requirement.
FMCSA acknowledged in its 2024 proposal that its approach differed from what the petitioners had requested. That gap is expected to be one of the central issues revisited in the supplemental notice. This distinction is important because it could determine whether the new proposal merely improves access to existing records or significantly changes the way brokers are required to share transaction information with carriers.
A decades-old right at the center of the dispute
The underlying right to review broker transaction records is not new. Section 371.3 has long required brokers to maintain records for each transaction and gives each party the right to inspect those records. The dispute instead focuses on how effectively that right can be enforced and on the use of waiver clauses that regularly appear in contracts between brokers and carriers. FMCSA also addressed one of the arguments raised against the proposed transparency requirements in its 2024 notice. The agency acknowledged that rate aggregation services provide carriers with pricing information that can help them decide whether to accept a load. However, FMCSA concluded that aggregated market data cannot replace access to the actual transaction record. Aggregated data does not identify the specific shipper, carrier or bill of lading involved in an individual shipment. It also does not reveal chargebacks or other fees that may have been assessed against a carrier on a particular delivery.
Questions over the small entities classification
One aspect of the regulatory agenda entry stands out when compared with the origins of the rulemaking. FMCSA states that small entities are not affected and that a regulatory flexibility analysis is therefore not required.
Under the Regulatory Flexibility Act, such a finding means the agency is not required to analyze the economic impact of the rule on small businesses or consider less burdensome alternatives specifically for them.
Yet the rulemaking itself began following petitions from OOIDA and SBTC, both of which represent small carriers. Both organizations framed their petitions around the economic position of smaller operators involved in brokered transactions. FMCSA’s own abstract also describes the issue in those terms. The classification is not necessarily contradictory. Regulatory flexibility analysis focuses on the burden imposed on the regulated party. In this case, the regulated party is the broker rather than the carrier.
The key question, therefore, is whether a meaningful number of affected brokers qualify as small entities. That issue could be raised by commenters once the proposal is published. The agenda entry also states that the legal authority for the rulemaking has not yet been determined, an unusual designation for a regulatory action that has already resulted in a published proposal.
Nearly 7,000 comments in the docket
The November 2024 proposal generated roughly 5,000 public comments. At the request of SBTC, FMCSA reopened the comment period on February 18, 2025, through 90 FR 9702. The additional comment period remained open until March 20, 2025 and generated approximately 2,000 further comments. Combined, the docket now contains close to 7,000 comments. Rather than moving directly to a final rule based on that record, FMCSA decided to prepare a supplemental proposal. That decision adds additional time to the process. A supplemental notice opens another period for public comment, meaning that any final rule remains at least one complete comment cycle and another round of regulatory review away from taking effect. The broader process began on August 19, 2020, when FMCSA sought public comments on the two original petitions through 85 FR 51145.
What changes for carriers now?
For now, nothing changes. Section 371.3 remains in force as currently written. Contractual waiver clauses remain subject to contractual interpretation and litigation rather than being clearly resolved through a new regulation. No additional obligations will apply to brokers unless and until a final rule is adopted and takes effect. The next developments to watch will be the conclusion of the OIRA review, which will appear on the same regulatory listing with a completion date and disposition. After that, the proposal would need to be published in the Federal Register, opening a new public comment period. Carrier and broker organizations that want to influence the proposal must also decide whether to seek a meeting with OIRA while the draft is still under White House review.
Why it matters
The proposal’s move to the Office of Management and Budget represents the first concrete evidence in eighteen months that the broker transparency rulemaking is actively progressing rather than remaining stalled. It also brings another public comment period within reach for the first time since March 2025.
However, the document currently under review is still only a proposal. The practical rules governing access to broker transaction records will not change immediately. Once OIRA completes its review, the text will still need to be published, opened to public comment and eventually proceed through a final rulemaking process.
For carriers, brokers and the organizations representing them, the August 27 submission is therefore an important procedural milestone, but the final regulatory outcome remains some distance away.
