Broker Transparency: A Right You Can Sign Away Isn't a Right

Since 1980, federal rules have said that everyone involved in a brokered load has the right to review the broker's record of that transaction (49 CFR 371.3). In practice, a lot of carriers have never seen one.

The reason is in FMCSA's own words. "Contracts between brokers and motor carriers frequently contain waivers of this right," the agency wrote in its 2024 proposal. Even without waivers, it said, carriers "often face practical hurdles" getting the records (Federal Register 2024-27115).

A right that's waived in the boilerplate of almost every broker-carrier agreement isn't much of a right.

Where the rule stands

This has been a long road. The Owner-Operator Independent Drivers Association and the Small Business in Transportation Coalition petitioned FMCSA in 2020. Both asked for an explicit ban on waiver clauses. OOIDA also asked for automatic electronic delivery of the record within 48 hours after a load is done (FR 2024-27115).

FMCSA's November 2024 proposal went part of the way. It would make providing the records a broker's regulatory obligation, require records to be provided electronically within 48 hours of a request, and expand what the record has to show (FR 2024-27115). The agency said the 48-hour rule targeted brokers who delay records or only let carriers look at them at the broker's office.

But it left waivers alone. "As a general principle, parties are permitted to waive any right unless Congress, by statute, specifically makes a right non-waivable," FMCSA wrote, and it said it hadn't found such a statute (FR 2024-27115).

Instead of finalizing that proposal, FMCSA is writing a new one. It sent a supplemental proposal to the White House Office of Management and Budget on Aug. 27 (CCJ). Reviewers met with the Small Business in Transportation Coalition about it on Sept. 17 (Reginfo.gov). As of Nov. 2, the White House review office still listed it as pending, more than two months after it arrived and well past the July target in FMCSA's own regulatory agenda (Reginfo.gov, Land Line). It still hasn't been published. When it is, a new comment period opens. A final rule is at least one more round away.

Why the waiver question decides everything

A 48-hour delivery rule is a real improvement. So is putting every charge, fee and payment on the record. But all of it depends on the carrier being allowed to ask.

Think about how waivers actually happen. A small carrier with one or two trucks doesn't negotiate a broker-carrier agreement. It clicks through onboarding or signs what it's sent, because the load is today and the alternative is the next broker with the same paperwork. A waiver signed that way isn't a bargain between equals. It's a condition of getting freight.

FMCSA argued that recasting access as the broker's duty would make waivers matter less. Maybe. But if a broker can still require a carrier to promise never to ask, most carriers who need the load will keep making that promise.

What the new proposal should do

1. Make the right non-waivable. Say plainly that any clause requiring a carrier to give up its right to the record is unenforceable.
2. If FMCSA believes it can't, say so and ask Congress. The agency's 2024 position was that it needed a statute. Then the fix is a one-sentence bill, and FMCSA should say publicly that it wants one.
3. Put teeth in it. A 48-hour deadline means little without a penalty for missing it and an easy way for carriers to report a broker who stonewalls.
4. Keep confidentiality where it belongs. Brokers can reasonably keep their records away from outsiders. The parties to the load aren't outsiders.

What you can do today

The current rule still applies. You can ask for the transaction record on any brokered load you hauled, and you should do it in writing. Before you sign the next broker-carrier agreement, search it for "371.3," "waive" and "transaction record." If you find a waiver, you'll at least know what you're giving up.

And when the supplemental proposal is published, file a comment. FMCSA has heard plenty from trade groups. It should hear from the carriers who actually sign these agreements.