A reader offered up a question that's been asked by well more than one owner-operator of late. With the Trump administration's many executive orders and deregulatory efforts flying around news headlines, "What is the new FMCSA thinking about the last one's broker transparency proposal?"
Those were the words as they came to my inbox early this week from a currently leased owner who noted he preferred to remain nameless here in these halls, but whose concern over just what any transparency proposal might ultimately become -- and just when it would -- rhymed quite well with the voices of others I've spoken to recently.
As the owner wrote:
The Federal Motor Carrier Safety Administration’s broker transparency proposal seems to have dropped off the radar this year. I know that many of the new issues are important, rightfully so. That said, let’s not lose sight of this issue, very important to owner-operators and larger motor carriers alike.
It would be nice to know what is going on with it. As it stands now, the so-called transparency proposal is worthless. Are they considering changing the language, or leaving it alone?
And when?
Good questions, and I put them to contacts within the FMCSA. Responses were tight-lipped on the substance of the rulemaking, and pointed to ongoing work on the Spring public regulatory agenda for upcoming news oround timing. Yet keep in mind a rulemaking by FMCSA could be a tall order regardless of its substance. That's if we assume they're in fact operating under the President's 10 regs removed for every 1 added executive order.
Fortunately for owner-operators hopeful for real movement on the proposal, FMCSA's proposal isn't exactly an addition of a new regulation, but rather a change in existing brokerage rules. Some brokers have shown their own clear disdain for those rules, with the Transportation Intermediaries Association petitioning for removal of freight transaction records review rights (transparency) from the federal code entirely. Yet perhaps also fortunately for owner-operators in favor of change, the last FMCSA in 2023 denied that petition entirely.
Bad news for the near term? Though adminstration-to-administration turnover at the agency isn't anywhere close to wholesale with a new president, FMCSA's set for new leadership, with a new chief on the way who will set the tone for the next period. Also: I don't know that I've ever seen a Notice of Proposed Rulemaking get to Final Rule stage in under a year -- the transparency proposal saw the light of day in November last year.
[Related: Hours of service should be front and center in Trump deregulatory efforts: Truckers]
At the same time, regulations can change fast if there's clear motivation. Look no farther than the English Language Proficiency violation's timetable for return to the out-of-service criteria, in response to President Trump's executive order issued barely two weeks ago. Though initial reporting suggested it'd be a year before the OOS designation for that violation would return to an OOS condition, the Commercial Vehicle Safety Alliance confirmed yesterday they'd put the move on a fast track, to go into effect next month.
'Sooner the better' on transparency
For the 30-year veteran owner-operator who wrote me early this week, though, for any FMCSA transparency moves "the sooner the better," as he put it in his letter:
I myself haul aircraft. Brokers are killing not just my freight -- they are doing it industry-wide, systematically and artificially driving down rates. I’ve seen plenty examples of brokers taking 30% to as much as 70% right off the top. Even going as far as to put just how to do this into the curriculum of the classes for new and upcoming brokers, as my daughter found out a couple years ago in one of those classes.
When you haul specialized freight as I do, you of course do it to make money, not to haul for less than “general freight” rates. ... Really, though, what is a general freight rate? With all of the market manipulation going on with brokered freight -- I view these outsize percentage takes as stealing, frankly -- it’s hard to really know.
As soon as the FMCSA announced that they were going to move on the broker-transparency issue in 2023, it seemed me that brokers immediately began to slam hard on the rates paid to truckers, keeping as much of the money as they possibly could. Their reasoning? In my view, they’re banking on the idea that if the transparency shoe drops, they can get out quick with as much money as possible.
A lot of the freight I haul comes from brokers who aren’t exactly bidding on it regularly. Rather, they’re being told by shippers what they are going to get paid to handle all of the logistics of said freight. They are locked in to a rate paid to themselves, and the prices go up every year. Yet the brokers still cannot seem to make enough money. Brokers have become, in many cases that I see, the transportation department for the aircraft industry, likewise for many other companies in other industries that truckers serve. Big shippers got rid of whole departments in favor of letting brokers shoulder the burden and the money.
For leased owner-operators like me, rates paid to our leasing carriers are transparent to us when they are direct from the customer -- if the carrier is honest, and the one I work with certainly is, owner-operators can be confident we’re getting a fair deal from the carrier on loads tendered from customers because our percentage cut is set. When we run a load brokered to our carrier partners, though, all bets are off, for us and for the carrier we’re leased to.
In my corner of the industry, it’s been a train wreck since the rise of brokerages here really got going in earnest about 20 years ago. We need broker transparency to keep the honest honest, and weed out the bad actors otherwise. Let’s ask the tough questions, and make the FMCSA uncomfortable. We need answers.
We need our lives and our money back for the work we do out here. The hands that actually do the work, from the people that make up the carriers we are leased to, to the owner-operators that call these carriers home, to the independent owner-operators that have the guts, and the knack, to do what they do. We all deserve to get paid for all the work that we put into keeping this country moving.
[Related: Broker transparency: About boosting rates? Or a fight for carrier rights]
Though interest in the transparency proposal is high, clearly, the owner-operator didn't hold out a whole lot of hope for real ramifications, if adopted as proposed by FMCSA last Fall. As some others have commented, a truly honest broker, in his view, would be transparent about commissions at the point of negotiation, not just 48 hours after a request for transaction records. The latter's what FMCSA's proposed rule would require as written.
"If FMCSA really wants to keep the fox out of the hen house," the owner said, "they would want to close the door and lock it. Just to be safe."
Truckers can already request records reviews after the fact today, he noted, yet there's a "very good reason no one asks the brokers now for that information," he said. After you get your transparency, "you guessed it, no more of that load for you. Maybe not any loads for you from that particular broker, either. You just got a red flag by your name."
Truckers can play the "do-not-load list" game, too (do-not-haul in that case), of course. And while FMCSA's current proposal would put the obligation to actually share transaction records directly on brokers -- and with that 48-hour time limit to provide -- how implementation might change brokered-freight dynamics more broadly is up for debate. There's plenty in this owner's and many others' views for the agency to consider.
And, to repeat this owner-operator's words, hopefully sooner rather than later.
[Related: Broker transparency: 8 in 10 owner-operators predict positive outcomes for rates]
