As the number of smartphones sold in the United States and worldwide overtakes sales of so-called ordinary cells phones, more Americans are using these devices while driving. A number of states have banned emailing or texting while driving, and many employers have issued policies banning their employees from texting while driving. But, did you know that drivers of commercial motor vehicles violate federal regulations if they use even an ordinary handheld cell phone while driving?
On December 2, 2011, the Federal Motor Carrier Safety Administration (FMCSA) published a rule in the Federal Register banning the use of hand-held mobile phones (cell phones) by drivers of commercial motor vehicles. The ban took effect on January 3, 2012.
The Rationale for the New Rule
FMCSA adopted the new rule in an effort to limit injuries and deaths caused by distracted driving. Research shows that hand-held cell phone calls significantly increase the risk for accidents because they involve all four types of driver distraction (visual, manual, cognitive, and auditory). Federal Register, Vol. 76, No. 232. According to the rule, both reaching for and dialing a hand-held cell phone are manual distractions and completion of these tasks requires visual distraction. Moreover, the rule notes that a driver is three times more likely to be involved in a safety-critical event when reaching for an object than when the driver is not reaching for anything. Similarly, a driver is six times more likely to be involved in a safety-critical event when the driver is dialing a cell phone than when the driver is not engaged in the act of dialing. Thus, the FMSCA determined that a rule prohibiting dialing and reaching could make the roads safer.
Who is Covered by the New Rule?
The rule restricts the use of hand-held cell phones by drivers of all commercial motor vehicles. The rule is not limited to commercial driver’s license (CDL) holders. Anyone driving a vehicle on a highway in interstate commerce is covered by this rule if the vehicle:
has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 10,001 pounds (4,536 kg) or more, whichever is greater; or
is designed or used to transport the driver and more than seven other passengers for compensation; or
is designed or used to transport the driver and more than 14 other passengers and is not used to transport passengers for compensation; or
is used in transporting hazardous material in a quantity requiring placarding under the U.S. Department of Transportation (DOT) regulations.
What Does the New Rule Prohibit?
The rule prohibits commercial motor vehicle drivers from three basic actions.
A driver is prohibited from holding a cell phone for a telephone call or other voice communication.
A driver is prohibited from dialing the cell phone, answering a cell phone, or ending a cell phone call by pressing more than one button (or touching the screen more than once).
A driver is prohibited from reaching for a cell phone. Reaching is defined as any action that the driver cannot complete while the seat belt is buckled and the driver is in the normal driving position.
This rule does not restrict the use of cell phones for purposes other than voice communications—such as using the cell phone’s GPS system. Another federal rule prohibits commercial motor vehicle drivers from texting while driving (effective October 21, 2010).
The rule includes not only traditional cell phone calls, but also push-to-talk phone use. However, two-way radios (or CB Radios) are not included under this rule.
What are the Consequences for Violating This Rule?
Violations of this rule have consequences for both drivers and motor carriers. Commercial motor vehicle drivers who violate the rule may be fined up to $2,750 for a first conviction. Additional penalties for subsequent violations include: (1) a 60-day disqualification if a driver is convicted of two violations of the rule within a three year period; and (2) a minimum 120-day disqualification for any additional convictions during the same time period.
FMCSA may also disqualify a CDL holder who violates any state hand-held cell phone use laws or regulations.
Motor carriers could incur a fine of up to $11,000 per violation. Motor carrier employers will be fined for violations by their employees regardless of whether the employer has a policy prohibiting driver cell phone use. Therefore, an employer is wise to not only have a policy prohibiting cell phone use in violation of the federal rule, but to strictly and consistently enforce the policy with tough consequences to strongly deter employee violations. Employers should also consider ways to equip their vehicles in a manner that will allow the employer to maintain contact with the drivers during transit without running afoul of this rule.
Practical Implications for Employers of Drivers Operating Commercial Motor Vehicles
This is a good opportunity for employers to check the gross vehicle weight rating or gross combination weight ratings for their vehicles and/or trailers. Employers may be operating commercial motor vehicles, such as large pickup trucks, and not realize that DOT regulations apply to the operation of those vehicles. And while most states have laws against texting and driving such that the DOT texting ban is not a departure from a driver’s personal practices, many states do not ban hand-held cell phone calls. Thus, it is important for employers to notify their commercial motor vehicle drivers of this rule and to modify their business practices accordingly.
Bruce J. Douglas is a shareholder in the Minneapolis office of Ogletree Deakins. Jody Ward-Rannow is an associate in the Minneapolis office of Ogletree Deakins.