A draft summary of the discussion on FMCSA’s proposed texting rule has been prepared by the Regulation Room team.

Until midnight Friday, April 30, you are invited to review the summary and suggest changes that would make it a better picture of the discussion. At that time, the site will be closed for additional comments (although you will still be able to read the content.)  No later than Monday May 3 (the end of the official comment period), a final summary that reflects your feedback will be posted on Regulation Room and submitted 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) as a formal public comment.

Anytime through May 3, anyone can submit their own comment 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) directly, by using regulations.gov.

During the discussion period, the site received 29 comments from 17 users.  People had to register to make a comment; 52 people registered during the discussion period. At registration they were asked if they had ever submitted a comment in a federal rulemaking. Here are the responses:

• No: 49 responses (94%)
• Yes:  1 (2%)
• Unsure:   2 (4%)

A second survey question (which appeared the first time a comment was submitted) asked people to describe their interest in the rule. 19 people chose to answer this question. 8 of these people selected more than one interest category, which is why the numbers below add up to more than 19. Here are the responses:

• member of the driving public:  6  people chose only this interest category; 8 others chose this interest category in addition to one of the categories below.  In general, this summary describes a commenter as a member of the driving public only if he/she selected only this category.)
• trucking industry owner the company that owns the rights to repayment of the mortgage principal plus interest or operator:  5
• working for a public transit authority:  0
• law enforcement:  0
• working for other state or local government:  2
• equipment manufacturer or dealer:  0
• member of an advocacy group:  2
• researcher or expert:  1
• other:  3

NOTE:  Regulation Room does not attempt to check on whether people correctly identify their interests.  For this reason, whenever the summary states a commenter’s interest, the description is based solely on information given by the commenter.

No one challenged FMSCA’s assessment that texting is a highly risky type of driving distraction, although one commenter (affiliated with Truck Driver News blog) was critical of the VTTI Virginia Tech Transportation Institute study for including “near misses” in their risk calculations: a near miss is not an accident. The principal the amount that is borrowed, not counting the cost of interest or fees disagreement came over whether a texting ban for CMV Commercial Motor Vechicles operators was the appropriate government response.

Most commenters who addressed the wisdom, in general, of the proposed rule and identified themselves as members of the driving public, favored a texting ban:

• One (a member of an advocacy group for bicyclists and pedestrians) reported that the group’s members consider texting while driving to be extremely dangerous activity. He/she felt that other countries are more successful at reducing driving-related injuries because they are very serious about removing root causes like texting.
• Another (who also described him/herself as “an advocate of Turn Off Cell B/4 Driving!”) urged driver and legislator attention to the National Safety Council’s White Paper as providing a clear, scientific explanation that the human brain is not capable of driving while talking on a cell phone because both activities use the same part of the brain. (He/she did not discuss texting, specifically, in the context of the White Paper.) This commenter was very concerned that it was taking so long to address cell use while driving; he/she felt that “the quickest, easiest solution” is to take existing “Click It or Ticket” laws “and simply ADD the provision “Click Off Cell!”
• A third criticized the propensity of many drivers to think that they can text safely even if it is dangerous for others. This commenter was willing to accept texting if a CMV Commercial Motor Vechicles breaks down or the driver needs other assistance, but emphasized that the communication should be brief.

One member of the driving public disagreed. Noting that any distraction while driving (e.g., drinking coffee or eating) can cause an accident, this commenter was concerned that banning cell phone use would be only the beginning. He/she wondered “where do we draw the line?” This commenter believes that “millions of people” can safely use their cell phone while driving, and that their freedom should not be limited “for the inabilities of others.” He/she argued that for people who spend a lot of time driving, cell phone use may be their only chance to communicate with loved ones, do business, or make other important calls. This commenter referred to cell phone use generally and did not specifically address the activity of texting.

• One (associated with the TruckDriver News blog) cited “multiple other studies” showing that any driver distracted by texting is 20%-50% more likely to have a safety critical incident, than non-texting drivers. In addition, he/she reported, other studies show that in incidents involving a CMV Commercial Motor Vechicles and a non-CMV, the non-CMV operator is at fault more than 80% of the time. (Specific studies were not identified.) The commentor argued that all this shows that the majority of drivers in the trucking industry are safer and more conscious of their surroundings than the average general driver. Indeed, according to this commenter, trucks are at their all-time low in fatality rates. By contrast, in his/her experience, CMV Commercial Motor Vechicles drivers are frequently “cut off, nearly side-swiped, [or] rear ended” by drivers of passenger vehicles who are distracted by using electronic devices.  (He/she also voiced serious concerns about enforceability, described below).
• Another agreed with 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) about the serious distraction problem but objected to singling out a particular group of drivers. He/she pointed to the existing heavy regulation of truckers, but noted that most of these rules are “at least tangentially appropriate given the nature of the vehicle driven.” By contrast, texting is engaged in by all classes of drivers — and so should be dealt with by state legislation that covers all vehicle operators. (This commenter also voiced serious concerns about enforceability, described below).
• A third opposed any legal ban on texting. This commenter argued that existing laws adequately cover injuries to people and property from accidents; he/she felt that law enforcement officials should put more attention toward criminal activities.

One commenter (who works for state or local government other than law enforcement) responded to concerns about singling out CMV Commercial Motor Vechicles operators.  He/she agreed that a texting ban should apply to all drivers, but argued that FMCSA’s proposal is “a good start.” This commenter also addressed the concerns about enforceability; his/her response appears below.

The comments on this part of FMCSA’s proposal fell into two categories: concern that some serious distractions were being excluded, and identification of parts of the definition that commenters thought were ambiguous.

Three commenters were concerned that the definition excluded activities comparable to texting:

• One (member of the driving public) saw no legitimate distinction between texting and entering a phone number or GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) information.
• Another ( a researcher or expert) questioned why the prohibited activity is limited to “entry of alphanumeric characters.” This approach apparently excludes uses like electronic gaming that are just as dangerous as texting. He/she suggested an alternative: Prohibit any activity with an electronic device that engages hands, eyes, and brain – and then state the specific exceptions.
• A third (a trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) argued more broadly that “the exceptions undo the proposed rule” because they pose serious complications for enforcement. For example, a law enforcement officer would not be able to determine if a driver is typing a text (prohibited) or dialing a telephone number (permitted).

One commenter (member of the driving public) urged more generally that the rule be a “clear and simple” prohibition against engaging in phone calls or texting while operating a motor vehicle.

• One (who did not respond to the interest question) would like to see use of social media websites such as Facebook and Twitter specifically addressed in the definition. The proposed language may include these services, but explicit language would be better.
• Another addressed the exemption for “using an in-cab fleet A group of motor vehicles owned or leased by businesses or government agencies management system or citizens band radio.” This commenter (a truck owner the company that owns the rights to repayment of the mortgage principal plus interest or operator who is also a Licensed Amateur Radio operator) suggested adding the phrase “or utilization of equipment by FCC Licensed Radio operators.” He/she thinks there will be confusion because the current language uses the term “citizens band radio” – a non-licensed communication device – “and does not go one step further to include the use of licensed devices such as Amateur, GRMS or Commercial Band radio (i.e. company radios).”  He/she notes that some Amateur Radio operators provide valuable services in time of disasters (e.g., Hurricane Katrina) and other have been used to communicate information to state and federal authorities through direct and/or relayed means. The equipment they use has a mode that can relay text-type messages. Although he/she does not advocate use of this mode while driving, this commenter points out that it may be necessary in emergency situations – and notes that many current or proposed state texting bans specifically exclude Licensed Amateur Radio operation.

Multiple commenters were concerned with how a texting prohibition would be enforced.

One (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) worried that the rule would create the potential for law enforcement abuse.  He/she gave two possible scenarios:  (1) a law enforcement official just decides to pull over a truck and accuse the driver of texting, requests to see the driver’s phone, and the driver refuses, prompting a ticket and road side inspection; (2) same facts except that the driver hands over the phone, officer sees that a text was sent 45 minutes ago, driver says he pulled over to send the text, but when officer asks for proof from the log book, driver realizes he did not log the 3 minutes in the rest area to send the text.  Another (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) expressed concern that the proposed rule not only inappropriately singles out CMV Commercial Motor Vechicles operations, who are already subject to a lot of regulation, but also is unenforceable.

Commenters suggested three alternative ways to control texting:

1. Require all cell phones to be programmed to shut down texting, email and internet functions whenever the phone travels faster than 5 or 10 mph. Software now exists to do this, using the phone’s built–in GPS.  Manufacturers should be required to add such code to all cellphones. This solution was strongly endorsed by several commenters. One (who expressed the enforcement abuse concern above) recognized that this approach would affect cell phone use by all occupants of all vehicles, but thought this is a acceptable tradeoff to deal with a major distraction for all drivers and to avoid a “non-enforceable and discriminatory” rule aimed at only CMV Commercial Motor Vechicles drivers.  He would answer the expected outcry from some members of the public by reminding them that driving is a privilege not a right. Another commenter (who self-identified as the President of Morris Area Freewheelers) argued that simply making cell phone use illegal would be as ineffective as current drunk driving laws. “This technological problem can be totally solved by technology.” A third (who identified his./her interest in the rule as “other”) thought this was “a wonderful idea.” Finally, a fourth (member of the driving public) felt that the technological solution was far more effective than, e.g., company rules against their drivers’ using electronic devices because such rules are ignored by many employees.
2. Require that cell phone providers provide customer usage data to law enforcement agencies about the time of the suspected illegal texting.
3. Require companies that operate CMVs Commercial Motor Vehicles (vehicles owned or used by a business) to report violations by their drivers. The commenter (member of driving public) who suggested this offered the analogy of the NCAA requiring colleges to investigate and self-report violations of athletic conference rules.  Another commenter (the same user concerned about enforcement abuse), doubted the workability of this. Although large carriers have ways of tracking many aspects of CMV Commercial Motor Vechicles operation, he/she is aware of no system that can track cell phone or wireless messages from a driver’s personal electronic equipment. Many fleets have rules against their drivers’ using personal electronic equipment while the vehicle is in motion, but these are hard to enforce, rely on an honor system, and rarely become an issue unless a driver is involved in an accident. The first commenter raised the possibility of requiring in-cab video equipment to monitor driver behavior. The second commenter replied that requiring such equipment would raise driver privacy concerns and be prohibitively expensive for smaller operators.

However, another commenter (trucking owner the company that owns the rights to repayment of the mortgage principal plus interest or operator) strongly criticized the penalty approach in the proposed rule. He/she notes that suspension of operating privileges can happen merely for the “act of texting” without any consideration of what consequences, if any, resulted.  Given that 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) is “a persons way of making a living, feeding his/her family and staying off the federal unemployment lines,” he/she argued that such a drastic penalty is not justified unless texting caused an accident involving property damage or injury – and even then only when synchronization of the vehicle’s on board recorder and the texting device confirm the time of texting. He contrasts the proposed penalty with a conviction for drunk driving which, according to this commenter, results in only a “slap on the wrist” in most states as far as the driver’s 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) status is concerned. Finally, this commenter worried that an additional federal rule is problematic given the number of current federal and (often varying) state rules for CMV Commercial Motor Vechicles drivers that are pushing many drivers out of the business. He/she predicted added litigation costs for both drivers and government entities as a result of a rule that leaves it “as a judgment call on the part of the enforcing officer.”