In an awkward position?

FMCSA’s stance on GPS may bring big changes on compliance

Just as Santa was wrapping presents last Christmas Eve, the Federal Motor Carrier Safety Administration was preparing its own package for the trucking industry.

And while this would be a major deal for carriers, it wouldn’t be a total surprise since FMCSA had dropped a big hint the month before. In any case, it wasn’t a gift too many trucking operations had requested.

On Dec. 24, FMCSA issued a memorandum to enforcement personnel stating that if a motor carrier obtains data from Global Positioning System (GPS) reports or from other “advanced information technology systems,” FMCSA investigators could routinely request those records as they could other supporting documents to verify drivers’ logs. And as with other supporting documents, carriers using GPS and similar systems now must retain this information for six months.

The supposedly internal memo, which since has found the light of day, states that the existing policy doesn’t change regarding critical and noncritical false logs. A critical false record-of-duty status (RODS) is one that is false by one hour or more, or 50 miles or more; noncritical false logs are those off by less than that. Enforcement officials should cite noncritical violations when significant, the memo states. “If egregious violations exist at the noncritical false RODS threshold, and a habitual violator or pattern is discovered, enforcement should be considered.”

The Dec. 24 memorandum followed a Nov. 19 Federal Register notice rescinding a policy requiring the approval of division administrators before an FMCSA investigator could demand access to GPS and similar data. The agency had adopted the policy in 1997 because it didn’t want to discourage motor carriers from adopting such technologies. Since 1997, FMCSA only occasionally insisted that carriers produce GPS data. The Nov. 19 notice simply reversed the old policy without elaboration; the Dec. 24 memo makes clear that enforcement officials now can treat GPS data as a supporting document.

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FMCSA’s new stance raises some significant issues and concerns. Until this policy change, carriers did not necessarily use GPS data internally to audit drivers’ logs. Now, they will need to do so or risk being surprised during a compliance review. Nor do dispatchers or fleet managers necessarily have the tools they need to use GPS data for hours-of-service compliance on a real-time basis. Carriers using electronic logs or onboard recorders have this capability, of course, but those operations already are, in effect, using GPS as a compliance tool. For others, FMCSA’s new policy may bring full accountability without a fair opportunity – at least in the near term – to catch violations as they occur.

The agency believes that the 1997 policy achieved its purpose because the trucking industry has had the opportunity to fully integrate advanced information technology systems into their operations and safety management. These systems are “common and essential,” FMCSA says. Perhaps, but they are far from universal. Many smaller carriers still don’t use any kind of vehicle locating system, and even some larger operations don’t use a GPS in all trucks. So carriers using GPS still face greater accountability than others.

Nor do carriers yet know what enforcement policies investigators will apply or even whether they will be consistent. GPS data undoubtedly will expose numerous instances of what FMCSA would consider noncritical false logs. What then will constitute “egregious violations” or “a habitual violator”?

Given that this policy change carries such major consequences for motor carriers, FMCSA should consider suspending it and instead proceed through an open, transparent rulemaking process. Perhaps it is reasonable for FMCSA to expect greater precision and accountability given the technology available today. But it’s also fair that the agency let carriers know precisely what is expected of them and give them an opportunity to comment on the issue.