As Overdrive reporting throughout the last few months has shown, owner-operators are largely in favor of the Federal Motor Carrier Safety Administration’s proposal to hold brokers’ feet to the fire when it comes to revealing a record of all payments made to and from the broker.
As reported yesterday, 79% of readers surveyed here believe the proposal to make it a regulatory duty for brokers to provide transaction records to any party to a load if requested would be good for freight rates, if the proposal makes it to final rule and implementation stages.
No matter where you stand on the issue, however, time is running out to file formal comments on the agency’s proposal. The comment period closes Tuesday, Jan. 21. As of Friday morning, FMCSA has received just shy of 2,500 comments on the proposal.
If you haven’t yet and are interested in filing a comment for FMCSA to consider when working to finalize the rulemaking, do so here by 11:59 p.m. Eastern time Tuesday, Jan. 21. Specific issues that FMCSA requested more information on related to the proposal can be seen here.
As for the nearly 2,500 comments already filed, find below a small sampling of the arguments both for and against the proposal.

[Related: Broker transparency: 8 in 10 owner-operators predict positive impacts for rates]
The argument for additional broker transparency requirements
Because owner-operators and motor carriers are providing a service to shippers by moving their products, whether through a broker or not, commenter Kenneth Rentie said they should be able to see what that customer is paying.
If carriers and owner-operators “cannot see what the customers are paying, then the brokers should be required to provide the transporters with a pay card and pay the full cost of fuel, maintenance, road services, and pay their business and personal taxes, because the rates they are giving us [don't] cover or add up to cover these,” nor the driver’s pay “to support their health and family,” Rentie noted.
Leanne Pooler said in her comment that, “for far too long, brokers have been allowed to take advantage of owner-operators.” She noted that owner-operators are “taking all the risk, but the broker has all the power.”
“There is no reason a broker should be making any more [than] 15%-20% off any loads moved in this country,” Pooler said. “There also should be no waiver that must be signed giving up the right for the carrier to know how much the broker is making off any particular load.”
Echoing Pooler’s comments regarding the risk lying with the carrier, Susan Cantrall said carriers and owner-operators “have a large overhead they have to contend with, just to break even. They are responsible for insurance, truck and trailer payments, fuel, service and maintenance, and costs of an authority, trucking regulations and taxes. Property brokers have office rent, office supplies and equipment, utilities. Trucking companies and owner-operators also have these expenses.”
[Related: Transparency enforcement could squeeze brokers' margins: Analyst]
Given these dynamics, Cantrall added that it just “makes sense property brokers are transparent over what they are being paid for loads they are offering.” She also added that there is too often the “appearance of collusion [between] some property brokers and some of the larger carriers. This appears to be an attempt to control the market by limiting a competitive market and fair competition for loads.”
As an owner-operator, “by accepting a load from a broker we are doing the lion’s share of the work," noted Jim Gilmore. "Not knowing what the shipper is paying leads me to believe the broker is taking the lion’s share of the money.” He went on to question the necessity of brokers in the trucking marketplace. “The shippers could put loads available on the Internet, and owner-operators could see what is available and more importantly see the real amount of money paid to move the freight.”
[Related: A freight world without brokers: 'Carriers United' daring to do more than just dream]
Some commenters, such as Jacob Long, felt FMCSA’s proposal falls short of true transparency. “Transparency 48 hours after the transaction is done still doesn't equate to transparency,” he said. “… Not allowing small business to have all the information needed to navigate [through] the process is unfair for the business and detrimental to the trucking economy. … This rule of transparency 48 hours after the transaction is done isn't far enough.”
Owner-operator Rusty Stanfield told FMCSA that “it is crucial to the survival of the small businesses man, the owner-operator, to see the entire contract including original price to ship a product! No other industry has brokers who have no limit on fees they take out of a contract!”
Stanfield added that brokers claim “they only take a small fee and it's not an issue, so why won't they share the load with the driver, the person who truly does the majority of the work? Let's stop the secrets and back door deals, give us transparency!!”
Bryan Nicklow expressed his concern about what he said is a “lack of support for owner-operators in enforcing their rights under rule 49 CFR 371.3. As a stakeholder in the trucking industry, I believe it is crucial for the FMCSA to actively assist and advocate for the rights of owner-operators. FMCSA has allowed broker fraud and noncompliance to run rampant and has yet to create the comprehensive enforcement program.”
[Related: FMCSA's first general-freight-broker enforcement blitz under way]
Nicklow added that it’s “imperative” that FMCSA “comprehend that unlawful brokerage activities have far-reaching consequences. When brokers operate without proper oversight, it affects carriers' ability to maintain safe equipment, afford required insurance policies, and comply with licensing and permit requirements. These issues directly impact highway safety and the integrity of our nation's transportation infrastructure.”
The argument against the broker transparency proposal
Most, if not all, comments supporting the proposal are from owner-operators, and the same seems to be mostly true on the flipside, with most, if not all, opposing the proposal being brokers.
Commenter D.W. Dredge said the proposal “is not only a solution in search of a problem,” but “its main impact will be in the opposite of the stated goal ‘to remove all unnecessary restrictions which might impede the free operation of the marketplace.’ Just the cost of compliance alone will impede the free operation of the marketplace. There is simply no need for this rulemaking.”
Dredge added that he believes the rule would violate the Defend Trade Secrets Act of 2016.
David Dendigner told FMCSA that while he recognizes “the importance of transparency in promoting fairness and reducing fraudulent practices, I believe that this proposed rule will have unintended negative consequences for the industry, especially for small businesses, motor carriers, and freight brokers.”
Among his reasons for opposing the proposal were an increased burden on small brokers, a reduction of competitive pricing, unnecessary government interference, a lack of clear benefits to the industry and more.
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Similarly, Jake Heim argued that the proposal “oversteps into an excessive burden without regard for how our industry has evolved and creates unnecessary complications without solving an existing problem.”
Heim added that “there is no lack of transparency, and with the advent of pricing tools, load boards, and market technology, the carriers already have visibility.”
Heim echoed Dredge’s belief that the proposal would violate the Defend Trade Secrets Act “by publishing sensitive and proprietary pricing and business information. This is the last thing an industry needs that suffers over $1 billion annually from freight fraud. FMCSA should focus its resources and time to curb this fraud pandemic and improve highway safety rather than proposing regulations that offer no real-world value to carriers, brokers, or shippers.”
One anonymous commenter opposed to the proposal claimed it “represents excessive government overreach.” Perhaps using a bit of sarcasm, the commenter added, “What will come next, the government requiring gas stations to post [their] actual cost per gallon or maybe the restaurant must put the actual cost of the eggs on their menu?” Ultimately, the commenter said, “If you feel the load does not pay enough just do not haul it. If all carriers think that way, the rates will defiantly go up.“
[Related: FMCSA intends to hold brokers' feet to the fire on transparency -- will it work?]
Mark Mastroianna told FMCSA that “brokers invest in hiring and training salespeople to solicit business from shipper to broker regardless of if an owner-operator or a company driver is involved in transporting the shipment.” As a result, he said, owner-operators “should not be entitled to financial information between the broker and the broker's customer. The broker's customer, is not the owner-operator's customer, it's that simple.”
Mastroianna saw the proposal "impacting supply chains in only a negative way, with very little to no upside" for owner-operators.
Commenter Shane Shoemaker, who said he has experience as a broker, dispatcher, driver, fleet manager and owner-operator over the last 25 years, argued that “carriers set the rate” and that “carriers are not forced to take any rate at any time.” He noted that brokers often bid on long-term contracts from shippers on a quarterly, semi-annual or annual basis. Depending on the timing and the market, he said sometimes brokers lose money on certain loads over the course of the contracts, and other times they make more than the standard margin on a particular transaction. “This to provide consistent freight spend cost" for the shipper, he said.
[Related: Broker transparency: About boosting rates? Or a fight for carrier rights?]
Shoemaker added that because of this, “transparency for a single transaction only shows that single transaction, it is not a picture into the bigger business or the overall profitability of a contract. It is only that one transaction. A determination of business practices cannot be [determined] by viewing a single transaction. ...
“Small and independent carriers have continually over-leveraged and under-saved or -planned for the [cyclical] nature of freight. This failure of business savvy should not fall on the broker. A carrier is at no time forced to accept a rate as the carrier sets the rate. Carriers knowing their total cost per mile at which they achieve profitability is imperative.”