For Submission to: Federal Motor Carrier Safety Administration (FMCSA)
Submitted by: Carriers, owner-operators, small fleets, trade groups, and supporters listed in the signature block (“Petitioners”)
Subject: Immediate and ongoing enforcement of broker compliance with all applicable federal statutes and regulations—including, as an illustrative example, 49 C.F.R. § 371.3—together with a measured penalty schedule for violations
Executive Summary
Petitioners respectfully request that FMCSA
(1) reaffirm and enforce the longstanding requirement that registered property brokers comply with all applicable federal statutes and regulations;
(2) prioritize enforcement of record-keeping and disclosure duties owed to parties of brokered transactions, as exemplified by 49 C.F.R. § 371.3; and
(3) adopt a graduated enforcement program that includes 7-, 15-, and 30-day suspensions, escalating to revocation upon a fourth offense, with clarity that merely including prohibited waiver language in broker-carrier agreements or onboarding materials constitutes an actionable offense.
Congress has charged the Secretary (and FMCSA by delegation) with promulgating and enforcing regulations that protect motor carriers and shippers in the broker context. 49 U.S.C. § 13904(e). That mandate must be honored not only in rulemaking but in enforcement—particularly where some brokers and trade associations have sought to water down or eliminate transparency obligations under § 371.3 while simultaneously using contracts to force carriers to waive federally protected rights. (Legal Information Institute, Federal Register, FreightWaves)
Requested Agency Action
Issue guidance and an enforcement directive reaffirming that registered property brokers are “fit, willing, and able … to comply with this part and applicable regulations,” as a condition of registration, and that non-compliance is actionable. (Legal Information Institute)
Prioritize enforcement of 49 C.F.R. § 371.3 (records of transaction; right of parties to review) and related protective regulations, with targeted audits, complaint triage, and corrective actions. (Legal Information Institute)
Adopt the following penalty schedule for broker violations affecting transparency or forced waivers of federal rights:
First offense: 30-day suspension of broker operating authority
Second offense: 90-day suspension
Third offense: revocation of operating authority
For clarity, the appearance or use of prohibited waiver terms (see “Prohibited Waivers,” below) in contracts, onboarding packets, portals, or load tenders—as a condition to tender or acceptance of freight—constitutes an offense even absent proof of actual load award or carriage.
Publish compliance guidance with model clauses and a Prohibited Clauses List (periodically updated) to eliminate evasions and promote uniform enforcement.
Expand the broker complaint intake to include a “Forced Waiver” flag, fast-track review, and public, anonymized dashboards of enforcement outcomes.
Background and Legal Basis
A. Statutory mandate to protect motor carriers and shippers
Congress expressly directs that broker regulations shall provide for the protection of motor carriers and shippers. 49 U.S.C. § 13904(e). This is a clear statement of purpose that elevates the protective function of broker regulation, and it should guide FMCSA’s enforcement posture today. (Legal Information Institute)
Relatedly, Congress requires that a person may be registered as a broker only if they are fit, willing, and able to comply with this part and applicable regulations. 49 U.S.C. § 13904(a)(2). Compliance is thus a condition of the privilege of authority, not a suggestion. (Legal Information Institute)
Congress also requires financial security (BMC-84 bond or BMC-85 trust) specifically structured for the protection of motor carriers and shippers in broker transactions, demonstrating the Act’s protective architecture. (Legal Information Institute, FMCSA)
B. The OP-1 application underscores sworn compliance and truthfulness
FMCSA’s Form OP-1 (Application for Motor Property Carrier and Broker Authority) includes
(i) an Applicant’s Oath signed under penalty of perjury, and
(ii) applicant certifications (e.g., for certain categories) acknowledging the duty to comply with pertinent statutory and regulatory requirements.
While the form’s specific certifications vary by applicant type, the statutory compliance obligation for brokers arises directly from 49 U.S.C. § 13904. (Legal Information Institute)
C. Transparency and records: 49 C.F.R. § 371.3
FMCSA’s broker record-keeping rule requires maintaining and making available records of each transaction; importantly, “[e]ach party to a brokered transaction has the right to review the record of the transaction”. These are not new concepts—they are core compliance duties that deter abuse and facilitate accountability. (Legal Information Institute)
Recent attempts to dilute § 371.3 have been rejected. In 2020, a petition asked FMCSA to eliminate § 371.3(c)’s records-access right; FMCSA later denied that request and initiated a transparency rulemaking responsive to petitions from OOIDA and SBTC. The current NPRM (RIN 2126-AC63) continues the agency’s focus on strengthening transparency. (Federal Register, FreightWaves, FMCSA)
D. The problem: Forced waivers and non-disclosure in broker agreements
Petitioners report routine use of contract terms and onboarding forms that condition load awards on carriers’ waiving federal rights. These include:
- Waivers of records-access under § 371.3
- Waivers converting the carrier’s insurance into unlimited or personal liability beyond policy limits
- Waivers of subrogation (requiring the carrier’s insurer to forgo recovery against a broker/shipper even if they contributed to the loss)
- No-claim, no-chargeback and overbroad indemnity clauses that override statutory schemes
- Provisions restricting or penalizing filing complaints with FMCSA or cooperating with enforcement
- OOIDA’s comment materials in the transparency docket specifically highlight the need to prohibit brokers from requiring carriers to waive § 371.3 rights—evidence that such waivers are common enough to warrant rule text. (Fighting For Truckers)
E. Why insurance-limit and subrogation waivers are especially harmful
Waivers that push carriers beyond insurance limits (or into personal liability) and waivers of subrogation can neutralize the protective function of federal broker regulation and shift catastrophic risk onto small carriers and their families, contrary to Congress’s structure. Courts have repeatedly recognized that subrogation waivers alter who ultimately bears loss and can bar recovery; their use in transportation contracts to insulate brokers undermines statutory protections designed for carriers and shippers. See, e.g., Hartford Underwriters Ins. Co. v. Phoebus, 979 A.2d 299 (Md. 2009) (analyzing the scope/effect of contractual subrogation waivers and when they bar recovery). (Leagle)
Industry and legal analyses likewise explain how waiver-of-subrogation clauses prevent insurers from “stepping into the shoes” of the insured to pursue responsible parties—an effect that, when imposed by brokers, weakens carrier protection Congress required. (translaw.org, Investopedia)
F. Courts routinely confirm that brokers have duties that can give rise to liability.
Multiple courts have allowed claims to proceed against brokers (under either negligent selection or agency/control theories), underscoring that brokers are not immune from safety-related obligations and accountability:
Sperl v. C.H. Robinson Worldwide, Inc. (Ill. App. Ct. 2011) (affirming verdict based on broker’s control/agency). (Illinois Courts, CaseLaw)
Schramm v. Foster (D. Md. 2004) (recognizing broker’s duty of reasonable care in selecting safe carriers; negligent-hiring claim survived). (Leagle)
Miller v. C.H. Robinson Worldwide, Inc. (9th Cir. 2020), cert. denied (2022) (negligence claim against broker not preempted by FAAAA due to safety exception). (Ninth Circuit Court of Appeals, wglaw.com)
Cox v. Total Quality Logistics, Inc. (6th Cir. 2025) (siding with the Ninth Circuit; negligent-hiring claim falls within the safety exception and may proceed). (Justia Law)
(We acknowledge some contrary circuit authority, but the trend toward accountability confirms FMCSA’s interest in vigorous enforcement of federal prerequisites—especially transparency and compliance duties that Congress designed to protect carriers and shippers.) (CaseLaw)
Prohibited Waivers and Practices (Illustrative, Not Exhaustive)
As a matter of enforcement policy and guidance, FMCSA should treat the following as per se prohibited when made a prerequisite to loads or onboarding:
- Waiver of § 371.3 Rights. Any requirement that a carrier waive, limit, delay, or condition the right to view records of the transaction (including margins, rates, and pay-flow timing). (Legal Information Institute)
- Insurance-Limit Overrides / Personal Liability. Any term purporting to (a) convert commercial auto, cargo, or GL insurance into unlimited liability borne by the carrier; (b) impose personal liability beyond corporate form; or (c) shift responsibility for a broker’s or shipper’s negligence to the carrier by contract.
- Waiver of Subrogation (Broker-Favored). Requiring carriers to provide waivers of subrogation in favor of brokers/clients as a condition of doing business (thereby foreclosing the insurer’s right to recover from a culpable broker/shipper). (translaw.org)
- Anti-Complaint / Anti-Cooperation Clauses. Any term restricting complaints to FMCSA or cooperation with audits or investigations.
Overbroad Indemnity / Hold-Harmless that nullifies statutory schemes or requires indemnity for a broker’s own negligence or willful misconduct.
- Mandatory Secrecy or Anti-Transparency Clauses that conflict with federal rights (e.g., prohibiting carriers from requesting records post-movement). (Fighting For Truckers)
- Agency position requested: FMCSA should clarify that drafting, circulating, or using clauses like the above, in any onboarding or load-tender process, is itself an offense—whether or not a particular load is ultimately hauled.
Enforcement Framework Requested
Graduated Penalties (per broker USDOT/MC number):
1st offense: 30-day suspension of broker authority
2nd offense: 90-day suspension
3rd offense: Revocation (with re-application only after 12 months and remedial plan)
Counting Offenses:
An “offense” is either (a) a substantiated failure to comply with § 371.3 (or comparable protective regulation) or (b) use of Prohibited Waiver terms as a condition to procure or tender freight (proof may include contracts, screen captures, onboarding emails, and affidavits).
Aggravation Factors (for enhanced penalties or immediate suspension):
Repeat offenders within 24 months
Retaliation against carriers who request records or refuse unlawful waivers
Systemic use of forced waivers across multiple carriers
Clauses purporting to impose unlimited/personal liability or waivers of subrogation that strip carriers/insurers of recourse
Complaint Triage & Transparency:
Add a “Forced Waiver” complaint flag in the National Consumer Complaint Database (NCCDB) and prioritize for review.
Publish anonymized enforcement dashboards to deter misconduct and spotlight compliance leaders.
The Public-Interest Imperative
Congress recognized that if trucking fails, the nation fails—hence the protective structure around broker registration, bonding, and record transparency. Broker authority is a privilege conditioned on compliance. In that light, trade or industry calls to eliminate records access under § 371.3—especially while some brokers compel carriers to waive federal rights—are more than policy disagreements; they are a direct affront to congressional direction and to the agency’s duty to protect motor carriers and shippers. (Legal Information Institute, Federal Register)
Proposed Model Language (for FMCSA guidance)
Prohibited Clauses — Example:
“Carrier hereby waives any rights under 49 C.F.R. § 371.3 to request, receive, or review records of this transaction, and agrees that all broker records and margins are confidential trade secrets not subject to disclosure.”
FMCSA Guidance: Void as against federal policy; its use constitutes an enforcement offense.
Permissible Transparency Clause — Example:
“Broker will retain and, upon request by any party to the transaction, promptly provide records required by 49 C.F.R. § 371.3, including the rated freight bill, carrier pay records, and all other documentation relevant to the transportation.”
Conclusion
Petitioners ask FMCSA to act now: reaffirm broker compliance duties, enforce § 371.3 and related protections, and adopt a clear, graduated enforcement regime that stops forced waivers at the source. This is squarely aligned with 49 U.S.C. § 13904(e) and the fitness-to-comply requirement for broker registration.
Respectfully submitted,
Carriers United
Leander Richmond
Date: 09/08/2025
