On November 20th, the FMCSA will publish a Notice of Proposed Rulemaking regarding so-called “broker transparency” in the Federal Register. The proposed rule resulted from petitions filed by the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition (SBTC) seeking changes to 49 C.F.R. § 371.3 to require brokers to disclose (when requested by the carrier), among other items, amounts paid by the shipper to the broker for a shipment. Currently, § 371.3 permits parties to agree to waive the disclosure requirements.

FMCSA’s proposed rule would:

1. Require brokers to maintain records electronically so as to make them easier to share.
2. Require the broker to keep records of all charges and payments connected with the shipment, including a description, the amount, the date, and any claims associated with the shipment (e.g., cargo loss and damage).
3. Reframe the regulations from a right of the requesting party to a regulatory duty imposed on brokers to provide records when requested to do so.
4. Require that records be disclosed within 48 hours of request.

FMCSA is accepting comments on its proposed rule for a period of 60 days from publication. The proposal significantly impacts the confidentiality of economic relationships between shippers, brokers, and carriers.

Please contact Nathaniel Saylor, Greg Feary, or Prasad Sharma to discuss.