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LindaR
4/30/2010 18:56

I’m an owner of a small trucking company.

I’m glad someone is finally doing something about the texting of drivers, but feel we need to include this to extend to all drivers not just commercial drivers. I do alot of driving and see people of non-commercial vehicle texting and driving all the time. I feel they make up more of the distraction then just commercial driver. So we should also do something about them.

Texting "Which drivers are covered"

Agency Proposal
By the Regulation Room team based on the NPRM
Agency Documents
1 1

The Overview:

FMCSA’s proposed new texting rule would apply to drivers of commercial motor vehicles (CMVsCommercial Motor Vehicles (vehicles owned or used by a business)) operating in interstate commerce. That may sound like a limited group, but the rule would cover more than 7 million drivers of some of the largest vehicles on our highways. Most of these drivers would be prohibited from texting by a new federal texting ban, while CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) holders also would face possible loss of operating privileges for violations of state or local anti-texting laws. And keep in mind that FMCSA’s proposed rule is only the beginning of national efforts to reduce distracted driving. Other federal agencies who regulate other kinds of vehicle operators are currently working on their own distracted driving rules.  More broadly, Congress and state legislatures are considering distracted driving legislation that would reach all drivers.

So, a lot is riding on this rulemaking. FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) can only apply its texting rule to the CMV Commercial Motor Vechicles operators under its jurisdiction. But the practical impact could be greater if people commenting on FMCSA’s rule have ideas and suggestions that result in a fair, clear and enforceable approach to texting while driving. Get involved: If you think texting while driving is a problem, this is your chance to be part of the solution.

2 0

The Details:

Scope of FMCSA’s legal authority. Although texting poses risks for all drivers, FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) has legal authority to regulate this distracting behavior only for certain CMV Commercial Motor Vechicles drivers operating in interstate commerce. The Motor Carrier Safety Act of 1984 authorizes the agency to “prescribe minimum safety standards for commercial motor vehicles” to ensure that “commercial motor vehicles are maintained, equipped, loaded, and operated safely” and that “the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely.” 49 USC United States Code § 31136(a).  In addition, the Commercial Motor Vehicle Safety Act of 1986 requires drivers of certain large CMVs Commercial Motor Vehicles (vehicles owned or used by a business) to have a “commercial driver’s license” (CDLCommercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers)) , a special license issued by the state under federal standards set by FMCSA. FMCSA can define what violations of state and local traffic laws qualify as “serious traffic violations” that disqualify CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) holders from operating their vehicles in interstate commerce. See 49 USC United States Code § 31310. (Both statutes actually give these powers to the Secretary of Transportation, but he has delegated the authority to FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) 49 CFR Code of Federal Regulations § 1.73).

So, the proposed texting rule would affect drivers who are under FMCSA’s jurisdiction because of one (or both) of these statutes. FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) has no legal power to ban texting by other kinds of drivers. We’ll take up broader anti-texting initiatives by other parts of the federal government, and by states, at the end of this post.
3 0 The two regulatory programs: Part 390 and Part 383/CDL. The proposed texting rule will affect about 7 million CMV Commercial Motor Vechicles drivers nationwide. But, because the two statutes give FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) different types of power over different groups of CMV Commercial Motor Vechicles drivers, the way the proposed rule would actually work is a bit complicated. Most of these drivers fall under the Motor Carrier Safety Act, and will be subject to a new federal-level texting prohibition added to Part 390 of  the Federal Motor Carrier Safety Regulations (FMCSRsFederal Motor Carrier Safety Regulations) .  In general, these are drivers of vehicles operating in interstate commerce that

As we’ll discuss in a later post, drivers who violate the new Part 390 texting prohibition would face federal fines and a period of disqualification from operating a CMV Commercial Motor Vechicles in interstate commerce.

Most drivers of larger CMVs Commercial Motor Vehicles (vehicles owned or used by a business) (about 4.2 million of the 7 million) are also covered by the CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) program set up by the Commercial Motor Vehicle Safety Act. (CDL requirements are contained in Part 383 of the FMCSRs). In general, these are drivers of vehicles operating in interstate commerce that

The Commercial Motor Vehicle Safety Act does not give FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) power to set separate federal rules of conduct for CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) holders. But the agency is authorized to decide which state and local traffic law convictions will count towards disqualifying the CDL Commercial Driver's License (a license required to drive any vehicle that weighs over a certain amount, carries hazardous waste, or carries over fifteen passengers) holder from operating his/her CMV. (49 USC United States Code § 31310(e).) FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is proposing to add state or local anti-texting laws to this list of “serious traffic violations” that can trigger a period of disqualification. (We’ll discuss penalty details in a future post.)
4 0 CMV drivers who are exempt. Things get more complicated because several groups of CMV Commercial Motor Vechicles drivers who fit the general vehicle definitions are exempt from Part 390, Part 383/CDL or both. Some of these groups are exempt because Congress wrote the exemption into the statute. FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) cannot change those exemptions. Other groups are exempt because FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) decided, in earlier rulemakings, that they should not be covered. Exemptions like this (called “regulatory exemptions”) could be changed by the agency, and FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is proposing to change two of them in this rule.

Clicking on the graphic below will show you which groups of CMV Commercial Motor Vechicles drivers are exempt from Part 390 (including the proposed new federal texting prohibition), Part 383/CDL (including proposed consequences for violating state or local anti-texting laws), or both.  You can also see whether FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) could change the exemption — and whether the agency is proposing to do so in this rulemaking. Remember that no driver on this list could be covered unless he/she meets the general criteria of vehicle type/size given in the previous paragraph, and operation in interstate commerce:

From this chart, you can see that the combination of statutory and regulatory exemptions means that several groups of CMV Commercial Motor Vechicles drivers – including firefighters, emergency vehicle operators, active duty military, and do-it-yourself movers – are not be covered by either Part 390 or Part 383/CDL. These drivers would not be affected by any texting rule FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) adopts, although they might be covered by one or more of the broader anti-texting initiatives described in the next section.

As we said, it’s complicated to figure out who is covered by the proposed rule, and how. The next graphic is a general summary of what kinds of CMV Commercial Motor Vechicles drivers would be covered by only the Part 390 proposed federal texting prohibition, only the Part 383/CDL proposed consequences for violating state/local anti-texting laws, both parts of the proposed texting rule, or neither part. It also shows the two Part 390 exemptions the agency is proposing to change for purposes of the texting ban only: (1) privately-employed school bus drivers, and (2) custom farm operations, apiarian industries and specific farm vehicle drivers. (To remove the bus driver exemption, FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is required by statute to find that the action is necessary for public safety regarding school bus transportation; it has made that finding. Recall that the exemption for bus drivers employed by school districts or other government units comes from Congress, so FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) can’t change it.)
5 0 Broader anti-texting initiatives. The ATA American Trucking Associations , among others, is on record supporting a texting ban for all drivers, but this would require legislation from Congress or state legislatures. At least three federal bills have been introduced. Senate bill S. 1536 (sponsored by Sen. Schumer and 9 other Senators) would cut federal highway funding for states that do not ban texting. H.R. 3535 (sponsored by Rep. McCarthy and 12 other Representatives) is a similar bill in the House. S. 1938 (sponsored by Sen. Rockefeller and 9 other Senators) would “establish a program to reduce injuries and deaths caused by cellphone use and texting while driving.”  It would do this through, among other things, grants to states and an education program.  None of these bills has passed either chamber.

Nineteen states, the District of Columbia, and Guam already have some form of anti-texting law on the books. Other states are working on legislation (see a list), and the National Highway Transportation Safety Administration just published a model anti-texting law that could be adopted by legislatures in other states. Furthermore, many cities, towns and counties already prohibit texting (or cell phone use more generally) by school bus and public transit drivers.

Last October, President Obama issued Executive Order 13513, which bans texting by federal employees driving either government vehicles or privately owned vehicles on official government business. (Section 3(c) of the Order allows agencies to exempt drivers engaged in “protective, law enforcement, or national security responsibilities” or “other emergency conditions.”)

Several of these broader anti-texting initiatives could reach CMV Commercial Motor Vechicles drivers who have statutory or regulatory exemptions from FMCSA’s proposed rule.
6 0 CMV drivers operating in intrastate commerce. We’ve now said several times that CMV Commercial Motor Vechicles drivers must be operating “in interstate commerce” to be covered by the texting rule. This is a legal requirement in FMCSA’s statutes. Congress set a slightly broader standard for Part 383/CDL (49 USC United States Code § 31301(2)) than for Part 390 (49 USC United States Code § 31132(4)), but the bottom line is that FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) may not directly regulate CMV Commercial Motor Vechicles operation that occurs within only one state and involves purely intrastate trade or traffic.

However, the Motor Carrier Safety Assistance Program (MCSAPMotor Carrier Safety Assistance Program) , goes a long way towards filling the coverage gap for intrastate CMV Commercial Motor Vechicles operation. MCSAP Motor Carrier Safety Assistance Program offers federal money to states for the expenses of safety inspections, traffic enforcement, and other law enforcement activities relating to safe motor carrier A person providing motor vehicle transportation for compensation. The term includes a motor carrier’s agents, officers and employees operation. (We’ll talk more about this in a later post.) One of MCSAP’s goals is that CMV Commercial Motor Vechicles safety standards should be the same wherever the vehicle is operated. So, one condition of getting federal money is that states must adopt state motor carrier A person providing motor vehicle transportation for compensation. The term includes a motor carrier’s agents, officers and employees regulations that are “compatible” with the federal FMCSRs Federal Motor Carrier Safety Regulations (49 USC31104(h)). As a practical matter, this means that any state wanting to keep its MCSAP Motor Carrier Safety Assistance Program money would have to incorporate the new texting prohibition in its own regulations governing in-state CMV Commercial Motor Vechicles operation. Generally, states have up to three years from the time a new federal regulation is finalized to make their regulations compatible, and this is the timeframe FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is proposing here.
7 0 Help FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) get it right. When it comes to which drivers are affected by a new texting rule,  FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) has no choice about excluding CMV Commercial Motor Vechicles drivers whom Congress has said it can’t regulate — like public transit bus drivers or school bus drivers who are school district employees. But the agency is specifically asking for information about state and local anti-texting rules, policies, and laws that already cover these drivers.

In addition, there are several groups of drivers whose exemption FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) can control. The proposed rule would change two of these regulatory exemptions for purposes of the texting prohibition only (school bus drivers employed by private companies, and certain agricultural CMV Commercial Motor Vechicles drivers), but it leaves all the others in place. It might be worth discussing whether FMCSA’s proposed approach to the various regulatory exemptions will produce a fair and effective CMV Commercial Motor Vechicles texting policy.
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