An important part of FMCSA’s cost analysis is taking a special look at the rule’s impact on small entities (businesses, non-profits and small governments.) FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) concluded that the texting rule wouldn’t significantly impact small entities.  (In fact, its worst case scenario predicts costs of less than $8 a year on small motor carrier operations). If you are a small business owner or employee, or work for a small government unit, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) wants to hear from you. Will the texting rule be a bigger deal for smaller entities than FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) realizes?

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The Details:

Costs and benefits of prohibiting texting while driving.  The Motor Carrier Safety Act requires FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to consider the costs and benefits of proposed regulations “to the extent practicable.”49 USC United States Code § 31136(c). In addition, FMCSA considers this a “significant regulatory action” requiring a regulatory evaluation under Executive Order 12866.

Because texting while driving is a recent phenomenon, quantitative safety analyses about its impact are limited. (A “quantitative safety analysis” makes a numerical estimate of (i) the frequency of accidents and other safety problems occurring from the risky activity, and (ii) the magnitude of the consequences to people and property when the accident, etc. does occur.) Because not much safety impact data for texting exists yet, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) did what is known as a “threshold analysis.” This involves determining what the minimum value of the safety benefits must be for the rule’s benefits to at least equal its costs.

FMCSA estimated that prohibiting texting while driving would cost CMV Commercial Motor Vehicle operators about $2.7 million annually. Here are factors that went into this estimate, and the dollar value FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) estimated for each (per year, for all drivers affected by the rule):

Lost driver time refers to additional time it would take the CMV Commercial Motor Vehicle operator to pull over and text, rather than texting while driving. Similarly, increased fuel costs are fuel expended while idling and entering and exiting driving lanes. Increased crash risk includes CMVs Commercial Motor Vehicles being rear-ended while parked on the side of the road for texting, and for collisions during exiting and reentering traffic. The $6 million figure for “Benefit of Eliminating One Fatality” is the current statistical valuation of one human life that DOT Department of Transportation agencies use in all their cost benefit calculations. (“Statistical value of a life” is an economic estimate of the dollar value of avoiding one fatality in general, not the value of preserving any particular individual’s life). The bottom line: FMCSA concluded that the texting rule would need to prevent only one fatal CMV Commercial Motor Vehicle crash per year for its benefits to exceed its costs.

(For details on these calculations, see FMCSA’s Preliminary Regulatory Evaluation.)

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Other Factors? FMCSA recognizes that there are probably other factors that affect the total costs and benefits of a new federal-level rule addressing texting by CMV Commercial Motor Vehicle drivers. A survey by the American Trucking Associations showed that many large commercial carriers already have policies prohibiting their employees from texting while driving. Other efforts to control texting—including state texting bans applicable to all drivers, local ordinances prohibiting texting by school bus drivers, and public transit authority anti-texting rules—are already in place. (See Which drivers are covered.) Many states and localities are already expending some enforcement resources on their own texting bans, but the new rule could mean additional compliance and enforcement efforts. (See Who & how of enforcement.)

FMCSA’s preliminary regulatory evaluation concludes there wouldn’t be “appreciable costs” to states. But it wants feedback on that conclusion. It also noted that there might be other, hard-to-estimate costs of banning texting while driving, such as delays in communicating information.  FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) specifically asks people for help in identifying and accurately valuing additional costs and benefits likely to be produced by the rule.

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Impact on “small entities.” The Regulatory Flexibility Act requires FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to consider whether the proposed rule will particularly affect several groups:

• Small Businesses: Those that are “independently owned and operated” and “not dominant in their field of operation”.
• Small Not-for Profit Organizations: Like small businesses, those that are “independently owned and operated” and “not dominant in their field of operation”.
• Small Governmental Units:  Those with a population under 50,000.

FMCSA concluded that although the texting rule would affect “all of the approximately 357,000 small entities covered by this rule,” the economic impact would not be significant. The majority of motor carriers are small entities;  FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) estimates the number of them at 357,000. However, even under the worst case scenario– where the entire $2.7 million in estimated costs is borne by these carriers only– the average annual cost of the rule would be less than $8 per carrier. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) therefore decided that it did not have to prepare a full Regulatory Flexibility Analysis.

FMCSA specifically encourages any small business, organization, or government unit with questions about the proposed rule or compliance options to contact the FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) Transportation Specialist whose contact information is provided in the NPRM. And we encourage discussion here about any particular impacts the texting rule might have on small carriers or local government units.

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Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get it right. Predicting the full costs and benefits of the texting rule is tough for several reasons: Texting by drivers is a relatively new phenomenon, and it’s not easy behavior to observe and measure. In addition, any new federal rule will be an overlay on top of all sorts of existing state, local, and carrier rules and policies about distracted driving. So this is an area where FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) can really use help. It has specifically asked commenters for any available data on:

• The causes and prevalence of texting and other forms of distracted driving;
• The incidence of texting-related crashes and the injuries and property damage involved;
• Costs to drivers and carriers of banning texting while driving;
• State and local compliance/enforcement costs of a federal texting rule.

From March 31 – May 2, 2010, people could use Regulation Room to learn about and discuss a new rule,   “Limiting the Use of Wireless Communication Devices,” being proposed by the Federal Motor Carrier Safety Administration.  This timeframe coincided almost exactly with the official comment period for the rule. An outreach plan developed by the Regulation Room team used social networking sites like Twitter and Facebook, as well as email and press releases, to try to alert and engage people.  Specifically, the team identified more than 100 potential stakeholder groups. Each received an email 24 hours after the rule opened and a follow-up phone call 10 days later. In addition, we delivered a press release to 73 identified media contacts who would reach various stakeholder groups. Social Network Outreach included identifying over 100 relevant Twitter and Facebook groups. We delivered an invitation to participate via their social network pages and send followup messages at significant points along the way.

On April 27, the team posted a Draft Summary of the discussion. People were  invited to review the summary and suggest additions or changes until midnight, Friday, April 30.  The team reviewed comments received on the Draft, and then prepared the Final Summary that appears below.  On the last day of the comment period (May 3) this summary was submitted, via Regulations.gov, to FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) as a formal public comment on the texting ban rule.

[dig]Who participated? During the 34 days the rule was open, a total of 3,665 unique visitors came to Regulation Room. On average, they viewed 3.8 pages per visit and spent 4.24 minutes on the site. Anyone could read material on the site, but registration was required to participate in the discussion. 54 people registered during the time the rule was open.

Based on answers to a survey at registration, 94%  of those who registered (51 of 54) had never submitted a comment in a federal rulemaking. One registrant had submitted a comment;  the other two answered “unsure.”  Of those who registered, 18 people submitted a total of 32 comments, which are summarized below.

A second survey question (which appeared the first time a user wanted to submit a comment) asked people to describe their interest in the rule. 20 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 20.

Based on these responses, members of the trucking industry and members of the general driving public appear to be roughly equally represented. A small number of commenters came from state and local government (other than law enforcement). 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” if he/she selected only this category.
• trucking industry owner or operator:  6
• 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.

[dig] SUMMARY OF DISCUSSION

Risks of Texting & Level of Support for a CMV Commercial Motor Vehicle Texting Rule in General

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 disagreement came over whether a texting ban for CMV Commercial Motor Vehicle 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 Vehicle 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.

[dig]Most commenters who addressed the wisdom, in general, of the proposed rule and identified themselves as affiliated with the trucking industry, were critical of FMCSA’s proposal:

• 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 Vehicle and a non-CMV, the non-CMV operator is at fault more than 80% of the time. (Specific studies were not identified.) From these data, the commentor 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 Vehicle 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).
• Two others agreed with FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) about the serious distraction problem but objected to singling out a particular group of drivers. One of the two 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). The other, the owner of a small trucking company, felt that non-commercial vehicle drivers make up more of the distraction then commercial drivers and felt that something should be done for them too.
• A fourth 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 Vehicle 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.

[dig]Definition of “Texting”/Scope of the Proposed Rule

The comments on this part of FMCSA’s proposal (new 49 CFR Code of Federal Regulations § 383.5 and 49 CFR Code of Federal Regulations § 390.5) 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 information (subsections (2)(i) & (2)(iii) of the proposed definition).
• Another (a researcher or expert) questioned why the prohibited activity is limited to “entry of alphanumeric characters” (first line of proposed definition). 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 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.

[dig]Two commenters suggested changes to make the status of certain activities completely clear:

• 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 management system or citizens band radio” (subsection (2)(ii) of the proposed definition). This commenter (a truck owner 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.

[dig]Enforcement

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

One (trucking owner 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 or operator) expressed concern that the proposed rule not only inappropriately singles out CMV Commercial Motor Vehicle operations, who are already subject to a lot of regulation, but also is unenforceable.[dig]

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 Vehicle 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 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 Vehicle 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.

[dig]A contrasting view was expressed by a commenter who works for state or local government (other than law enforcement.) Recalling the experience with seat belt laws, this commenter believes that “a well-written law with teeth” helps shift people’s views of appropriate behavior. The existence of the law itself provides guidance about what society expects. Although it may be hard to catch most drivers in the act, well-publicized instances where texting caused serious accidents and the driver responsible was seriously punished will eventually transform society’s attitude towards texting just as it did with the use of seat belts. The important thing is a law with “clear guidelines and suitable penalties.”

However, another commenter (trucking owner 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 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 confirms the time of texting. He/she 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 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 Vehicle 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.”

This concludes the Summary of Discussion.

[dig]Comments on the Draft Summary. Shortly after the draft summary was posted, an email was sent to everyone who registered, altering them of the posting and inviting their help in creating the final summary for submission to FMSCA. A similar email was sent to groups that were part of the initial outreach.  Anyone could comment on the summary, whether or not they had participated in the original discussion.

Two people (both of whom had previously participated in the discussion) commented on the draft.  One suggested that we add references to specific sections of the proposed rule to assist the agency’s analysis of the comments.  We have added those references where possible.  The second person strongly took issue with the position of those who questioned the need or appropriateness of banning texting while driving.  He/she did not suggest that the draft summary was inaccurate or incomplete, but instead reaffirmed the existence of evidence that driving and texting is unsafe because both activities involve the same brain functions.

This concludes the submission of the Regulation Room team on behalf of those who participated in the online discussion of  “Limiting the Use of Wireless Communication Devices.”

By the way, this is the final issue raised by FMCSA’s proposal. In two days, the Discussion Phase will be over. So, if you have anything to add about this or any of the other issues raised by the texting rule, now is the time. At the end of the Discussion Phase, the issue blog will be closed so that the Regulation Room team can start working on the draft Summary of Discussion that will eventually go to FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) as a formal public comment on the texting rule.

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The Details:

Other legally required analyses. In addition to likely costs and benefits of the texting rule, and any particular impacts on small entities (discussed in the previous post), FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) must consider whether there will be an impact on more than a dozen different interests identified by Congress and the President. It found little or no effect on most of these — listed at the end of this post. The rule’s potential environmental and federalism impacts, however, required more explanation. [dig]

Environmental impacts. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) has done a draft Environmental Assessment under the National Environmental Policy Act. FMCSA thinks there could be minor impacts from the texting rule on emissions, hazardous material spills, solid waste, or public health and safety—but nothing that could be considered a significant positive or negative environmental impact. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) specifically requests comments on this conclusion. If it gets no information that changes its current assessment,  FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) will issue a Finding of No Significant Impact.

FMCSA also did a Clean Air Act analysis and decided that any increase in air pollution from the rule would be de minimis (that is, not legally significant).  (See 40 CFR Code of Federal Regulations 93.153(c)(2)). The agency doesn’t expect that banning texting while driving will significantly increase the total number of CMV Commercial Motor Vehicle miles or change drivers’ routes, basic CMV Commercial Motor Vehicle operations, or the number or types of CMVs Commercial Motor Vehicles on the road. [dig]

Federalism impacts. Under Executive Order 13132, a proposed rule has federalism impacts if it has a substantial direct effect on state or local governments and would either preempt state law or impose a substantial direct cost of compliance on those governments. FMCSA recognized that the texting rule could impact state and local governments because of the cooperative state/federal nature of CMV Commercial Motor Vehicle safety programs and enforcement. (See Who & how of enforcement.) FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) did send a letter about the rule to the National Governors Association, the National Conference of State Legislatures, and the American Association of Motor Vehicle Administrators, offering the opportunity to meet and discuss any concerns. It specifically encourages state and local governments to raise federalism issues in commenting on the rule.

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Impacts on other interests. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) found that the texting rule had no  impact on the following interests.  (DOT Rulemaking Requirements describes what each of these statutes or executive orders requires FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to consider.)

• Unfunded Mandate Reform Act: FMCSA concluded that the texting rule didn’t meet the UMRA threshold of imposing $141.3 million or more in annual combined State, local and tribal governments expenditures, or private sector expenditures.  (See What costs & benefits for FMCSA’s calculation of probable costs from the rule.)
• Paperwork Reduction Act: FMCSA concluded that the rule would not involve collecting any new information from the public.
• Privacy Impact Assessment: FMCSA concluded that the rule will not require collecting, maintaining or disseminating personally identifiable information from or about individuals.
• Executive Order 12630 (Taking of private property): FMCSA concluded that the proposed rule would not interfere with constitutionally protected property rights.
• Executive Oder 12988 (Civil Justice Reform): FMCSA concluded that the proposed rule meets the presidential requirements of minimizing litigation, eliminating ambiguity, and reducing burden.
• Executive Order 13045 (Protection of Children): FMCSA concluded that the proposed rule does not create an environmental risk that might disproportionately affect children’s health or safety.
• Executive Order 13211 (Energy Supply, Distribution or Use): FMCSA concluded the rule isn’t likely to have a significant adverse effect on the supply, distribution or use of energy.
• National Technology Transfer and Advancement Act: FMCSA does not know of any “voluntary consensus standards” that exist on texting.
• Executive Order 12898 (Environmental Justice): FMCSA concluded that any environmental impacts of the rule would not fall disproportionately on, or have a “high and adverse impact” on, minority or low-income populations.

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Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get it right. Texting while driving is a new (though apparently growing) phenomenon, and there’s not much data on the frequency and effects of this form of distracted driving. That makes it hard for FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to pin down possible impacts on the laundry list of interests that Congress and the President have told agencies to consider in rulemaking.

The agency has specifically asked for comment on environmental impacts of prohibiting CMV Commercial Motor Vehicle operators from texting while driving.  It’s also asked for more information on how the rule could affect state and local governments. If there are impacts or data in these areas (or others) that FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) hasn’t taken into account, now is the time to speak up.

Materials from the Discussion Phase and the Collaboration Phase, including the draft and final summaries, will remain available on Regulation Room for public review.  A file of all content submitted by site users will be made available to the agency at its option.  (This file will not include any personally identifiable information you did not choose to make publicly viewable on the site.  See Privacy & Conditions.)

If the thought of drivers doing 65 mph on the interstate while reading their email or sending text messages makes you cringe, you’ll want to know more about a proposed new federal regulation. The Federal Motor Carrier Safety Administration (FMCSAFederal Motor Carrier Safety Administration (the agency proposing the texting rule)) has just released a draft rule to control texting by commercial motor vehicle (CMVCommercial Motor Vehicle) drivers. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) is in charge of safety regulation for more than 7 million truck and bus operators nationwide. Texting, according to the agency, is a particularly dangerous form of distracted driving: In one recent study, CMV Commercial Motor Vehicle drivers who text were 23 times more likely to have a “safety critical event” than nontexters.

FMCSA wants your input. A texting ban might seem a “no brainer,” but coming up with a clear, fair, and effective rule is harder than it first looks. For the next 15 days, Regulation Room users will be learning about and discussing the issues:

• What are the risks of texting? (Today’s topic)
• Which drivers would the new rule cover? (It’s complicated)
• What behavior would be prohibited? (More than you think of as texting)
• What’s the plan for consequences? (Just how do you enforce a texting ban?)
• What’s the rule likely to cost?  (Did FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get the numbers right, especially for small companies?)

After the discussion, you can help put together a summary to go to the agency and, if you think there’s still more to say, join other people in writing additional comments to FMCSA.

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The Details:

Why start with texting? The increasing use of cell phones and other electronic devices by drivers as well as passengers has focused national attention on the growing problem of distracted driving. For FMCSA (the agency in the U.S. Department of Transportation (DOTDepartment of Transportation) responsible for CMV Commercial Motor Vehicle safety), this rulemaking is the first step in addressing the problem for the millions of truckers, bus drivers, and other CMV Commercial Motor Vehicle operators within its jurisdiction. (We’ll talk about which drivers are, and aren’t, covered by the proposed rule in our next post.) In its official Notice of Proposed Rulemaking (NPRMNotice of Proposed Rulemaking: the official document announcing and explaining the proposed rule) FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) explained that texting involves all three major types of distraction: visual, physical, and cognitive (mental). The texter’s eyes are off the road, his/her hands are off the wheel, and his/her mental focus is on something besides driving.

In the agency’s view, this makes texting an especially dangerous form of distraction. The Motor Carrier Safety Advisory Committee (a group of experts from the motor carrier industry, safety groups, and law enforcement agencies set up to advise FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) on safety issues) agrees: Its March 2009 report on motor carrier safety urged FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to adopt an anti-texting rule as part of broader regulation against the problem of distracted driving. According to the NPRM, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) is planning additional rulemakings on other uses of cell phones and on electronic devices like GPS.  (A later post will explain how the definition of “texting” tries to exclude such activities from the current rulemaking).

[dig]Public, expert and industry concern. FMCSA noted that broad agreement already exists about the inappropriateness and danger of texting while driving:

• An AAA Foundation for Traffic Safety survey found that 94% of drivers think it’s unacceptable to text or email while driving, and nearly 87% consider such behavior a very serious threat to their personal safety.
• DOT’s Distracted Driving Summit brought together safety experts and advocacy groups, researchers, federal and state elected officials, law enforcement personnel, and representatives of the transportation and telecommunications industries.  The discussion demonstrated need and widespread support for banning texting while driving.
• A CBS News/New York Times poll reported that 90% of Americans think texting while driving should be outlawed, and more than 94% of those who admit they text or email while driving believe this makes them somewhat more likely to be involved in an accident.
• Safety groups, including the National Safety Council and Advocates for Highway and Auto Safety, have supported texting-while-driving bans.
• The American Trucking Association (ATAAmerican Trucking Associations) has urged legislation to prohibit all drivers from texting. According to a survey conducted by ATA’s Safety Policy Committee, 67% of respondents already have a company policy restricting or limiting use of portable electronic devices while driving.
• Almost all public transit agencies already prohibit drivers from using electronic devices and/or from texting specifically.
• The National Association of State Directors of Pupil Transportation Services (i.e., school bus authorities) has gone on record supporting legislation that would ban all drivers from texting. (We’ll discuss broader federal and state distracted driving initiatives in the next post.)

[dig]The VTTI Virginia Tech Transportation Institute data on distraction risks. In 2004, a motorcoach filled with students going to Mount Vernon collided with the underside of an Alexandria, VA bridge overpass; the driver had failed to move out of the low-clearance lane while talking on his cellphone. Investigation of this accident eventually led FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) to hire the Virginia Tech Transportation Institute (VTTIVirginia Tech Transportation Institute) to investigate the role of driver distraction in “safety critical events” (crashes, near-crashes and lane departures) involving CMVs. The Driver Distraction in Commercial Vehicle Operations study placed video recorders and sensors in trucks driven by more than 200 different drivers and collected 3 million miles of data. It found that 71 percent of crashes, 46 percent of near-crashes, and 60 percent of all safety critical events involved drivers engaged in non-driving tasks such as texting, looking at a map, writing on a notepad, or reading.  Here is a summary of the study’s results:

(Click to open)

In this table,

• “Odds Ratio” is the risk that a driver engaging in the task will be involved in a safety critical event, as compared with an undistracted driver. (Confidence intervals for these Odds Ratios can be found at Study pp xx-xxi). A texting driver is 23.2 times more likely to be involved in a crash, near-crash, or lane departure than a driver who is not texting. Texting drivers took their eyes off the road for an average of 4.6 seconds.  In this much time, a truck going 55 mph travels approximately the length of a football field.
• The “Population Attributable Risk Percentage” takes into account how often drivers engaged in the particular task. The low PAR for texting means that drivers in the study did not text very often.

Because texting is a high risk activity, more safety critical events could be expected if texting while driving increases. The VTTI Virginia Tech Transportation Institute study observed driver behavior between November 2005 and May 2007. A wireless industry survey conducted by CTIA,The Wireless Association reported that 740 billion text messages were sent during the first six months of 2009 – almost double the number reported in 2008 and a 2,200% increase from the first six months of 2005. These figures show that texting in general has greatly increased in recent years, although they don’t break out texting that occurred while driving.

[dig]Other distraction risk studies. FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) identified several other studies on texting:

• Text Messaging During Simulated Driving (Drews, et al. 2009) which found that sending or reading texts resulted in significantly slower braking response times
• Driver Workload Effects of Cell Phone, Music Player, and Text Messaging Tasks with the Sync-Voice Interface versus the Devices’ Handheld Visual-Manual Interfaces (Shutko, et al., SAE International, 2009), finding that median total eyes-off-the-road time was 11 seconds for reading a text with a handheld cell phone, and 20 seconds for sending a text
• Effects of Text Messaging on Young Novice Driver Participants (Hosking et al., 2006), which found several unsafe driving behaviors associated with texting, including difficulty remaining in lane and in detecting hazards and responding to safety signs
• Effect of Text Messaging on Driver Behavior (Reed & Robins, Transport Research Laboratory, 2008), finding that texting was associated with increased stopping distance of three car lengths

FMCSA considers these results consistent with the VTTI Virginia Tech Transportation Institute study, although it notes that they involved smaller samples, simulator rather than on-road driving, and/or young drivers. (For those interested in data quality issues, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) provides peer review information about many of these studies, including the VTII study, in footnotes in the NPRM).

[dig]Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get it right. You may have seen news reports last month that the Secretary of Transportation “banned texting” by CMV Commercial Motor Vehicle drivers. Actually, there wasn’t a new federal rule adopted at that time. (In general, agencies can’t make new rules without a long process that involves advance notice and public comment. See Learn About Rulemaking.) What really happened in February was the Secretary’s announcing DOTs interpretation that existing federal motor carrier regulations could already cover texting as an unsafe driving practice.

Whether or not texting violates general CMV Commercial Motor Vehicle safety rules, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) wants to write a clear, detailed regulation that addresses texting specifically. You can help the agency get the new texting rule right. In each post, in addition to summarizing what FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) says in the NPRM Notice of Proposed Rulemaking: the official document announcing and explaining the proposed rule on the issue of the day, we’ll flag places where it explicitly asks the public for help.

On the risks of texting, FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) is looking for additional data or studies about texting while driving. In particular, it’s asking for any data about the frequency of texting by drivers in general, or CMV Commercial Motor Vehicle drivers in particular. It’s also asking for motor carrier companies’ experiences in implementing policies on their drivers’ use of electronic devices.

The proposed texting rule would fit into what’s a well-established federal-state enforcement system for CMV Commercial Motor Vehicle operating safety. But the real enforcement challenge may be something the proposed rule doesn’t talk about: determining when a CMV Commercial Motor Vehicle texting violation is occurring. How will any law enforcement entity know when a driver is texting? Is there anything FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) could do about this problem?

[dig]

The Details:

Role of states. Ensuring safe operation of CMVs Commercial Motor Vehicles is a joint federal-state project.  Federal law sets minimum safety standards for interstate CMV Commercial Motor Vehicle operation and defines basic requirements for the CDL Commercial Driver's License program, but state and local law enforcement agencies are mainly responsible for enforcement.  This state-federal cooperation is a condition for states to receive certain federal highway funds and other transportation-related grants.  Here’s a quick summary of how states would be involved in enforcing a new FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) texting rule.[dig]

MCSAP money and FMCSR Federal Motor Carrier Safety Regulations: federal rules governing operation and safety of Commercial Motor Vehicles enforcement. The federal Motor Carrier Safety Assistance Program (MCSAPMotor Carrier Safety Assistance Program) provides grants to states for reducing the number and severity of CMV Commercial Motor Vehicle crashes. Reimbursable activities include highway patrol and inspection costs for enforcing CMV Commercial Motor Vehicle regulations.  All states currently participate in MCSAP.  One condition of participating is that states must adopt regulations “compatible with” the FMCSRs, including Part 390.  These compatible state regulations must apply to both interstate and intrastate CMV Commercial Motor Vehicle operations. (49 USC United States Code § 31104(h); 49 CFR Code of Federal Regulations § 350.341).

This means that states who want to keep their MCSAP Motor Carrier Safety Assistance Program money would have to add a texting prohibition to their own CMV Commercial Motor Vehicle regulations within the next three years.  One important consequence of this is that intrastate CMV Commercial Motor Vehicle operation would then be covered by a state texting ban compatible with the federal ban in Part 390. (See the explanation in Which drivers are covered.)

Another MCSAP Motor Carrier Safety Assistance Program funding condition is that states must agree to enforce (and provide evidence that they are enforcing) the FMCSRs Federal Motor Carrier Safety Regulations and their own compatible CMV Commercial Motor Vehicle regulations.   States that can show a reduction in CMV-related fatal accidents can qualify for additional “incentive funds.” [dig]

Federal highway money and enforcing Part 383/CDL requirements. States set up and run the CDL Commercial Driver's License program, but unless a state wants to forfeit a percentage of its federal highway-aid funding, it must commit to several enforcement steps, including:

• Participation in/use of nationwide driver information databases: The state must be connected to the Commercial Driver’s License Information System (CDLISCommercial Driver Licensing Information System) , maintained by FMCSA, and the National Driver Register, maintained by NHTSA.  These national clearinghouses allow access to all states’ records of drivers who are convicted of serious traffic offenses and whose licenses have been canceled, denied, revoked or suspended. States must check these records before issuing, renewing, upgrading or transferring a CDL.
• Prompt reporting of convictions:  States must keep accurate CDLIS Commercial Driver Licensing Information System records of serious traffic violations by CDL Commercial Driver's License holders.  If the CDL Commercial Driver's License was issued by another state, the conviction must be reported to the issuing state within 10 days.
• Imposing sanctions and respecting other states’ convictions.  No later than 3 years after a final texting rule is adopted, states would have to adopt and enforce the requirement to disqualify CDL Commercial Driver's License holders convicted of violating state/local anti-texting laws.   (We’ll discuss the details of disqualification in the next post.)   Moreover, the state that issued the CDL  would have to enforce disqualification based on CMV Commercial Motor Vehicle texting convictions in other states and localities, even if the issuing state doesn’t have its own anti-texting law. (49 CFR  § 384.218, 49 CFR Code of Federal Regulations § 384.219)

States that fail to comply with these conditions can lose federal highway funding: up to 5% the first year, and 10% in following years.

Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get it right. FMCSA’s proposed texting rule would fit into a well-established enforcement framework for CMV Commercial Motor Vehicle operating safety.  (The next post will look at the penalty details for Part 383/CDL disqualification and for violating the Part 390 texting prohibition.)  But the real enforcement challenge may be something that the agency hasn’t said much about: How do you tell when a CMV Commercial Motor Vehicle texting violation is occurring?

Of course, other safe vehicle operating rules (e.g., seatbelt laws) can involve driver behavior that is hard to observe from outside the vehicle. Does a ban on reading or sending texts while driving present significantly tougher enforcement issues? Are there solutions the agency should consider in this rulemaking? FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) has specifically asked for information on how existing anti-texting laws, as well as company policies on texting and other electronic device use, are enforced. Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) get it right by weighing in on how the texting ban will be enforced.

FMCSA’s proposed new texting rule would apply to drivers of commercial motor vehicles (CMVsCommercial Motor Vehicles) 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 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 texting rule) can only apply its texting rule to the CMV Commercial Motor Vehicle 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. [dig]

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 texting rule) has legal authority to regulate this distracting behavior only for certain CMV Commercial Motor Vehicle 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 to have a “commercial driver’s license” (CDLCommercial Driver's License) , 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 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 texting 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 texting 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.

[dig]The two regulatory programs: Part 390 and Part 383/CDL. The proposed texting rule will affect about 7 million CMV Commercial Motor Vehicle drivers nationwide. But, because the two statutes give FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) different types of power over different groups of CMV Commercial Motor Vehicle 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

• have a gross weight rating of 10,001 lbs. or more, or
• transport or are designed to transport more than 8 people (including the driver) for pay or more than 15 people (including the driver) not for pay, or
• transport hazardous materials requiring a hazardous materials placard. (49 USC United States Code § 31132(1))

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 Vehicle in interstate commerce.

Most drivers of larger CMVs Commercial Motor Vehicles (about 4.2 million of the 7 million) are also covered by the CDL Commercial Driver's License 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

• have a gross combination weight rating of 26,001 lbs. or more, or
• are designed to transport more than 15 people (including the driver), or
• transport hazardous materials requiring a hazardous materials placard. (49 USC United States Code § 31301(4))

The Commercial Motor Vehicle Safety Act does not give FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) power to set separate federal rules of conduct for CDL Commercial Driver's License 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 holder from operating his/her CMV. (49 USC United States Code § 31310(e).) FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting 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.)

[dig]CMV drivers who are exempt. Things get more complicated because several groups of CMV Commercial Motor Vehicle 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 texting rule) cannot change those exemptions. Other groups are exempt because FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting 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 texting 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 Vehicle 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 texting 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 Vehicle 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 texting 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 Vehicle 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 texting 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 texting rule) can’t change it.)

[dig]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 Vehicle drivers who have statutory or regulatory exemptions from FMCSA’s proposed rule.

[dig]CMV drivers operating in intrastate commerce. We’ve now said several times that CMV Commercial Motor Vehicle 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 texting rule) may not directly regulate CMV Commercial Motor Vehicle 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 Vehicle 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 operation. (We’ll talk more about this in a later post.) One of MCSAP’s goals is that CMV Commercial Motor Vehicle 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 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 Vehicle 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 texting rule) is proposing here.

[dig]Help FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting 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 texting rule) has no choice about excluding CMV Commercial Motor Vehicle 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 texting 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 Vehicle 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 Vehicle texting policy.

Everyone knows what texting is, right? Maybe. But a new rule that will have substantial fines and/or operating disqualification for CMV Commercial Motor Vehicle operators must be clear and specific about what behaviors will trigger these consequences. So, the rule has to contain a definition of texting. And here’s the problem: It isn’t so easy to define texting in a way that includes the kinds of distractions FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) wants to target, without also pulling in activities (like making cellphone calls or using GPS devices) that the agency wants to deal with in future rulemakings.

The result of FMCSA’s efforts is a definition of texting that definitely covers what people generally think of by the term; but it also covers a lot of other activities. These include updating phone contacts, adding notes or appointments to a PDA, using an electronic calculator, and maybe even reading from an e-book reader like Kindle. All these are likely to be serious distractions if done while driving a 10-wheeler on the interstate — but not what most of us would call texting, and maybe not so different from some other activities that are specifically excluded in the definition. Check out the proposed definition of texting. Make sense? Can you help FMSCA do any better?

[dig]

The Details:

More than just texting. We’ve been talking about FMCSA’s proposed rule as “the texting rule,” but its official title is “Limiting the Use of Wireless Communications Devices.” As this title suggests, although the core concern is texting, the proposed rule would cover a wider range of distracting behaviors because of the proposed definitions of electronic devices and texting.

First let’s look at the complete language of the definitions and then we’ll focus on several key phrases.

“Electronic device includes, but is not limited to, a cellular telephone; personal digital assistant; pager; computer; or other device used to input, write, send, receive, or read text.

Texting means manually entering alphanumeric text into, or reading text from, an electronic device.

(1) This action includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or electronic text entry, for present or future communication.

(2) Texting does not include:

(i) Reading, selecting, or entering a telephone number, an extension number, or voicemail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a phone call or using voice commands to initiate or receive a telephone call;

(ii)  Using an in-cab fleet management system or citizens band radio;

(iii)  Inputting or selecting information on a global positioning system or navigation system; or

(iv)  Using a device capable of performing multiple functions for a purpose that is not otherwise prohibited in this rule.”

[dig]

Devices. The first thing to notice is that the rule is not limited to activity involving cell phones or smart phones.  The definition of  electronic device is intentionally broad; FMCSA says it wanted to “focus on the behavior not the device.” Devices that are used to input, write, send, receive, or read text include laptops and electronic notebooks, calculators, e-book readers (e.g., Kindle), hand-held video games, and maybe DVD players.  (Of course, the device is only one piece of the definition; all parts of the definition of texting have to be met as well before an activity is prohibited.)

The definition of texting excludes certain types of devices that would otherwise be covered (see below). These exclusions mostly reflect FMCSA’s announced intention to deal with distractions from general cell phone use, and use of GPS and electronic dispatching/fleet management devices, in a separate future rulemaking.   [dig]

Manually entering alphanumeric text or reading text. Because the definition of electronic devices is so broad, it’s especially important to focus on all parts of the definition of texting. The core seems to be the idea of manually entering or reading text. Pretty clearly, then, neither voice-operated text entry nor listening to text (e.g., books-on-tape) is included. This makes sense given FMCSA’s belief that texting is especially dangerous because it involves all three types of distraction: hands off the wheel, eyes off the road, and mind on something else. (See: What are the risks.)

Alphanumeric text isn’t separately defined, but since standard dictionary definitions of alphanumeric include letters, numbers, and characters like punctuation, it seems pretty clear that combinations of symbols :>) would be included. On the other hand, using touchscreen icons seems to be outside the definition. Also apparently not included is viewing pictures/images without text. So, whether watching a movie or video fits the definition seems to depend on whether or not there are subtitles or other text involved. Clearly included are a range of activities that don’t fall within the normal sense of texting. For example,

• updating contacts or address book
• adding information to, or reading it from, a calendar, scheduler, or electronic notepad
• typing in a web address to access the internet
• entering or reading information in an online mapping/driving directions service like Google Maps
• using a calculator, electronic dictionary or translator

[dig]

Engaging in electronic text retrieval or entry, for present or future communication. This is an especially interesting part of the definition because it’s not clear what its effect will be. Does it exclude any activities that would otherwise qualify as entering alphanumeric text or reading text? Communication isn’t separately defined, but presumably includes communication with oneself  (as when a driver updates a contact or writes a grocery list on a phone notepad).  Perhaps it excludes activities like reading the song title and artist on an indash radio display?

[dig]

Excluded devices and activities. Several things that would fall within the definitions of electronic device and texting are expressly excluded from the rule:

• Making or receiving a call, reading a phone or speed-dial number in order to make or receive a call, or using voicemail
• Entering or viewing information in a GPS: Apparently it doesn’t matter whether the device is onboard or free-standing, although there is some question about web-based GPS services. The activities needed to access those services on a laptop or smart phone involve “a command or request to access a World Wide Web page” and so would seem to be covered, even though actual use of the service is excluded from the definition.
• Using a in-cab fleet management system, or a CB.

These exclusions reflect FMCSA’s plan to deal with these distractions in a future rulemaking.

Also excluded is “using a device capable of performing multiple functions for a purpose that is not otherwise prohibited.” This exclusion is a bit curious, but the purpose seems to be making clear that, for example, drivers can use their smart phone to play music.

Finally, the new Part 390 prohibition would expressly allow texting “when necessary to communicate with law enforcement officials or other emergency services.”

These are basically the same penalties that apply to most violations by CMV Commercial Motor Vehicle operators and CDL Commercial Driver's License holders. The only possible difference is that convictions for texting while driving a non-CMV would not count towards the multiple convictions that trigger CDL Commercial Driver's License operating disqualification. For other serious traffic offenses, convictions even for non-CMV driving count if the conviction resulted in a loss of driving privileges. Maybe this doesn’t make any practical difference (maybe no existing state or local anti-texting laws include license suspension or revocation as a penalty) but it’s worth thinking — and talking — about as part of the whole question of what should be the consequences for texting while driving.

[dig]

The Details:

Consequences for convicted violators. FMCSA’s proposed texting rule involves two different (but related) programs that regulate CMV Commercial Motor Vehicle drivers: the federal-level FMCSR Federal Motor Carrier Safety Regulations: federal rules governing operation and safety of Commercial Motor Vehicles program and the CDL Commercial Driver's License program that states operate under federal standards. (See Which drivers are covered.) In general, both programs punish violations through fines and, for repeated convictions, suspension of CMV Commercial Motor Vehicle operating privileges. The penalties FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) is proposing for texting violations would, for the most part, involve the same sort of consequences that apply to other FMCSR Federal Motor Carrier Safety Regulations: federal rules governing operation and safety of Commercial Motor Vehicles and CDL Commercial Driver's License violations. Here is a chart of these consequences:

[dig]

Convictions must be for CMV Commercial Motor Vehicle texting. The one place where texting consequences would be different from other violations comes in the CDL Commercial Driver's License program. FMCSA has proposed that the convictions of state/local anti-texting laws that trigger CDL Commercial Driver's License consequences must involve texting while operating a CMV. This means that a CDL Commercial Driver's License holder’s conviction for texting while driving in some other context (e.g., driving a personal vehicle) would not count towards disqualification. (See proposed new 49 CFR Code of Federal Regulations §383.51 Table 2 (9) & note 2 defining “driving”). For other “serious traffic violations” such as excessive speeding or following too closely, a violation for non-CMV driving does count towards disqualification if that conviction results in suspension or cancellation of non-CMV operating privileges (e.g., the driver’s regular driving license).  (See current 49 CFR Code of Federal Regulations § 383.51 Table 2 (1)-(5)).

FMCSA doesn’t really explain why it thinks a different approach for texting convictions is appropriate. It discusses section 31310(e) of the Commercial Motor Vehicle Safety Act, which authorizes disqualification for convictions for “serious traffic violations involving a commercial motor vehicle operated by the individual.” Still, the approach FMCSA Federal Motor Carrier Safety Administration (the agency proposing the texting rule) takes to other serious traffic violations is authorized by section 31310(g), which permits disqualification based on non-CMV convictions if they result in loss of driving privileges. [dig]

Convictions in other states. Consequences for texting by CDL Commercial Driver's License holders depend on convictions under state/local anti-laws, but these laws don’t have to be from the state that issued the CDL. A CDL Commercial Driver's License holder could be convicted of texting while driving a CMV Commercial Motor Vehicle in another locality that prohibits texting, and his/her home state would have to recognize that conviction and impose the appropriate CDL Commercial Driver's License penalty. (49 CFR Code of Federal Regulations § 384.218; 49 CFR Code of Federal Regulations § 384.219.) CDL Commercial Driver's License holders are required to report out-of-state convictions to their home state within 30 days. Moreover, as explained in  Who & how of enforcement, states are required to report within 10 days convictions of traffic violations by CDL Commercial Driver's License holders to the state who issued the CDL. [dig]

Responsibilities of CMV Commercial Motor Vehicle owners. In general, the motor carrier owning the CMV Commercial Motor Vehicle is separately responsible for the driver complying with applicable regulations — and the proposed rule would specifically direct carriers not to allow or require drivers to text while driving. In addition, CMV Commercial Motor Vehicle employers may not allow an employee to drive a CMV Commercial Motor Vehicle while he/she is disqualified. (49 CRF §391.15; 49 CRF 383.37) Drivers must report a disqualification to their employer by the end of the next business day after they are notified of the disqualification.