George Carlin & CSA Safety Management Cycle for Unsafe Driving

January 1, 2011

Funnyman and philosopher George Carlin once said that he could get rid of illegal drug trafficking in the United States in a month’s time.  The solution, according to Mr. Carlin, was not to go after the users or the dealers.  Instead, he said, we should give the death penalty to the bankers and businessmen and women who launder their money or sell them goods.  Without these services, the drug dealers would become frustrated and give up the trade.  The obvious downside to making this plan successful, Mr. Carlin said, was that a substantial number of the bankers/business people would actually have to be executed to send the appropriate message.  After that, others would fall in line.  Needless to say the plan put forth by George is not a viable solution and was simply offered to get a laugh.  However, the reasoning behind George’s plan seems to have been adopted by FMCSA.

In the coming weeks the FMCSA will release its “CSA Safety Management Cycle for Unsafe Driving.”   According to the FMCSA, this document identifies practices a carrier should have in place in order to ensure compliance with FMCSA regulations.  In reality, this document identifies six areas “which a Safety Investigator systematically explores to discover what Safety Management Processes are broken or not in place.”  In other words, when conducting an audit, an Inspector will look to see if the carrier has the policies and procedures specified by the FMCSA in place.  Failure to do so will likely be viewed as a Safety Management Process breakdown by the carrier and dealt with accordingly.

As previously mentioned, the CSA Safety Management Cycle for Unsafe Driving identifies six (6) categories to be reviewed.

The categories are:
(i) Policies and Procedures;
(ii) Roles and Responsibilities;
(iii) Qualification and Hiring;
(iv) Training and Communication;
(v) Monitoring and Tracking; and
(vi) Meaningful action.

Of course, there are several items listed under each category that are to be considered; however, for the purpose of this article we will just discuss a few.  However, it should be noted that the guidelines for the other Basics follow the same pattern or logic as the Unsafe Driving Cycle.

Under the “Policies and Procedures” section, each carrier is to “develop a written, progressive disciplinary policy comprising warning letters, suspensions, and fines, and ultimately leading to termination, focused on taking corrective action to ensure that drivers comply with unsafe-driving-related regulations and company policies.  This policy should also specify consequences for any carrier official who knowingly and willfully allows unsafe-driving violations.”  This is alarming!  What the FMCSA is saying is that carrier officials (President, CEO, CFO, VP of Safety, or anyone considered an “officer” of the carrier) could be punished for allowing unsafe driving violations.  Of course, the language says “knowingly and willfully” allows unsafe driving.  My question is how this will be determined (other than by a jury of course).   Will the President or CEO be assumed to have knowledge of everything that happens on the road simply by his position?  Will a bad driver that is allowed to continue to drive satisfy this requirement?  I do not know.

I know some of you out there think this will not happen; however, it already has with respect to publicly traded companies.  In 2002, Congress passed the Sarbanes-Oxley Act, which requires that CEOs and CFOs certify each financial report.  By signing the financial report, the officer is certifying, among other things, that he/she has reviewed the report, it contains no material omissions and that it fairly represents the financial position of the business.  Any officer who willfully certifies an untrue report faces fines up to $5,000,000.00 and 20 years in prison.  Now let me ask you: how many of you think that every CEO is so involved with all financial aspects of the business as to be able to honestly make the representations required by the Sarbanes-Oxley Act.  I would venture to say the number is quite small.  Rather than spend the day with their head in the books – the CFOs job – the CEO is making business decisions and developing strategies to deal with the current business environment.  In most cases, I believe the CEO is relying on the work performed by the CFO or work performed by an outside auditor when signing financial reports.  Thus the CEO likely does not have actual knowledge of the items he is certifying.  Regardless, the Securities and Exchange Commission has made him/her potentially liable.  This is not much different than what the FMCSA is requiring for the trucking industry.  How many CEOs of large carriers actually know the driving record/history of each of the company’s drivers’?  Again, I would venture to say that the number is relatively small.  Instead, CEOs and other high level executives are concerned with making sure there is freight to haul and that the company will be paid an amount sufficient to allow it to continue to operate.  Regardless, like the SEC, the FMCSA will start to impute this knowledge on the business officers.  In my opinion, this is not fair.  How do you think a plaintiff’s lawyer would use this information in a civil trial?  If you could show that a corporate officer was fined or punished for allowing unsafe driving to occur while presenting your case against the carrier, wouldn’t you do it?  Again, I think the FMCSA is off the mark.  We should all strive to eliminate unsafe driving, but punishing officers of the company where it occurs is not the way to do it.

Under the “Qualification and Hiring” section, the FMCSA states that a carrier should “ensure that prospective drivers will drive safely by querying applicants, checking with previous employers and references, and obtaining necessary documents regarding drivers’ safety performance going back three years.  Create a detailed written record of each inquiry.”  I do not know about you, but it seems to me that even if a carrier does everything asked of them this will not “ensure that prospective drivers will drive safely.”  A carrier can only do so much.  While carriers are responsible for the actions of its drivers a carrier cannot always control the decisions made by its drivers on the road and no amount of pre-employment screening will change this fact.

In the “Training and Communication” section, it states that a carrier should “communicate the carrier’s deficient Unsafe Driving score to ALL STAFF, and explain to them individually what they can do to help the carrier improve the score.”  Now, I am all for working as a team to improve a poor Unsafe Driving score; however, the requirement to relay this information to ALL STAFF seems a bit over the top.  It seems to me that the Carrier should be able to determine which staff members it tells without the government stepping in.  This section also states that carriers should “ensure that managers and supervisors communicate and demonstrate their commitment to safe driving.”  Again, everyone should be committed to safe driving but what type of “communication and demonstration” will the FMCSA determine to be adequate.

In the “Monitoring and Tracking” section, it states that carriers should “ensure that dispatcher and/or safety manager monitor drivers’ speed for violations with use of an electronic or manual movement record – that is, that they track driver movements via driver reports, global positioning systems (GPS) and travel receipts.”  Again, we should all strive to track truck movement and monitor for speeding; however, if you do not have EOBRs on your trucks this can become very time consuming and create a large financial burden.  In these economic times, everyone is trying to make ends meet and cannot readily shoulder additional expenses.  Of course, the easiest way to comply with this is to have EOBRs installed on all trucks (again at a significant financial expense) and I believe this is just another not so subtle attempt by the government to push carriers towards (maybe require) EOBRs.

Finally, in the “Meaningful Action” section it states that the carrier should “discipline carrier’s officials for knowingly and willfully allowing violation of unsafe driving regulations – for example, for encouraging drivers to speed.”  Again, this mimics what was mentioned in the earlier section and confirms the FMCSA position that carrier officials should be disciplined for things such as encouraging drivers to speed!  Of course, the question must be asked what constitutes encouraging a driver to speed and what punishment will be sufficient?  Is a verbal warning enough?  Will they require a written warning?  Is a monetary penalty for the “official” realistic?  If all else fails, will they resort to Water Boarding?  Again, I do not know and it looks like FMCSA is also unsure since they are not specific in what they will accept or require.

In theory, an inspector would only look at a carrier’s BASICs above the threshold – again, in theory — but there is nothing to stop the inspector from looking for and finding missing or inadequate policies and procedures in Basics that are under the threshold because they still represent an area for carrier violation.  Don’t forget, the inspector is authorized to check all six BASICsand the Crash Indicator for violations, not just the Unsafe Driving Cycle.

In my opinion, the CSA resembles our just passed new Health Care Law.  By that I mean that the rules are changing as you read this and no one really knows the outcome, or the unintended consequences, of the current or future rules and regulations.  We do know that changes will be and are being made.  Some changes because they violate the law (i.e. no chance to appeal the charging officer’s opinion of whether you violated the rules or regulations, or even the warning ticket issue where there is no way to contest it at all) and some just because the system they thought was going to work has proven not to work (i.e. SMS points on Overweights and Overlengths have been eliminated).  Additionally, the “firm, set in stone” date for CSA to go live has been changed from July 1, 2010 to December 1, 2010 and the last “firm” date I have heard is December 5, 2010.  I cannot guarantee this will be the last “firm” date change for CSA, or 2011 or even 2012 because of the many proposed lawsuits waiting for FMCSA to go “live”.

Drivers need to be aware of the changes coming for the carriers and be prepared to work with the carrier to reduce or eliminate any reason for the FMCSA to send inspectors to do an audit of the carrier.  Self-preservation of the driver requires that they know and follow all the new and ever changing rules and regulations of CSA if they hope to continue their career as a professional driver.

At the end of the day, just like George Carlin’s plan, the FMCSA seems to believe that the best way to eliminate unsafe driving is not to go after the person who is driving unsafely but to go after the company.  Unfortunately, this time nobody is laughing.