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Legal Issues Pertaining to Sweeping

Legal Issues Pertaining to Sweeping

Hand-held Cell Phones Banned for Commercial Drivers

by Ranger Kidwell-Ross
Posted January, 2012
Thanks to Carolyn Bell, Member Services Administrator for 1-800-SWEEPER, for reminding us via email about this new law going into effect.

Nationwide, beginning January 3, 2012, all commercial drivers, including truck and bus drivers are banned from using hand-held cell phones. There will be a stiff fine of up to $2,700 per offense for truckers and bus drivers caught using hand-held cell phones while driving.

Cell Phone

The law allows only emergency responders and roadside assistance workers to use hand-held cell phones. An estimated four million commercial drivers will be affected nationwide.

About 40,000 state laws have taken effect since the start of the year.

Michigan's ban on text messaging for all drivers went into effect July 1, 2011. Penalties are $100 (first offense) and then $200, no points.

Here are some of the most frequently asked questions about the new law.

Thanks to David Ross of Millennium Maintenance and Power Sweeping for providing this FAQ info.

1. Q: What is the effective date of the Mobile Telephone rule?
A: The effective date of the rule is January 3, 2012.

2. Q: Are wired or wireless earpieces allowed?
A: Yes. Hands-free use of a mobile telephone is allowed using either a wired or wireless earpiece, or the speakerphone function of the mobile telephone. Wireless connection of the mobile telephone to the vehicle for hands-free operation of the telephone, which would allow the use of single- button controls on the steering wheel or dashboard, would also be allowed.

3. Q: Is Push-to-Talk allowed?
A: No. A driver's use of the Push-to-Talk function on a mobile telephone violates the prohibition against holding the phone. This includes the continuous holding of a button that is necessary to use a Push-to-Talk feature through a mobile telephone, even when the driver is using a connected microphone or wireless earphone.

4. Q: Are holders of a commercial driver's license (CDL) subject to the regulation only when driving a CMV, as defined in 49 CFR 383.5, or any vehicle?
A: CDL holders are subject to the Federal rule only when driving a CMV.

5. Q: What drivers are covered by the Federal rule: intrastate or interstate? CDL holders? All CMVs?
A: The rule covers both drivers of CMVs in interstate commerce and intrastate drivers who operate CMVs transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.

If a CMV driver is employed by a State or a political subdivision of a State (e.g. county, city, township, etc.), FMCSA safety regulations do not apply, even if the driver is engaged in interstate transportation. But if a CMV driver employed by a State or a political subdivision of a State is operating a vehicle that requires a CDL, the applicable State traffic laws would govern (e.g., Maryland's prohibition on the use of hand-held phones). The States have three years to implement by State law the disqualification provision.

6. Q: What is required of the employer in terms of company policy or training?
A: The rule does not require motor carriers to establish written policies in terms of company policy or training programs for their drivers. However, employers are prohibited from allowing or requiring their drivers to use hand-held mobile phones. A motor carrier may establish policies or practices that make it clear that the employer does not require or allow hand-held mobile telephone use while driving a CMV in interstate commerce. The carrier is responsible for its drivers' conduct.

7. Q: Is dialing a phone number allowed under this rule?
A: No. Dialing a mobile telephone while operating a CMV in interstate commerce is prohibited by the rule. A driver can initiate, answer, or terminate a call by touching a single button on a mobile telephone, earpiece, steering wheel, or instrument panel comparable to using vehicle controls or instrument panel functions, such as the radio or climate control system.

8. Q: Can a driver reach for a mobile telephone even if he/she intends to use the hands-free function?
A: No. In order to comply with this rule, a driver must have his or her mobile telephone located where the driver is able to initiate, answer, or terminate a call by touching a single button while the driver is in the seated driving position and properly restrained by a seat belt.

If the mobile telephone is not close to the driver and operable while the driver is restrained by properly installed and adjusted seat belts, then the driver is considered to be reaching for the mobile phone, which is prohibited by the rule.

9. Q: Are tow trucks exempt?
A: No. The interstate operation of tow trucks that meet the definition of a CMV are not exempt. Tow trucks, however, are exempt when responding to police emergencies in accordance with 49 CFR 390.23 (a)(3).

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Rationale for the Scope of the Proposed Rule

Following quotes are from the DOT/FMCSA Website where rationale was give for why the rule was proposed.

Driver distraction can be defined as the voluntary or involuntary diversion of attention from the primary driving tasks due to an object, event, or person. Researchers classify distraction into several categories: Visual (taking one's eyes off the road), manual (taking one's hands off the wheel), cognitive (thinking about something other than the road/driving), and auditory (listening to someone talking).

Research shows that using a hand-held mobile telephone while driving may pose a higher safety risk than other activities (e.g. eating and writing on a pad) because it involves all four types of driver distraction. For example, reaching for and dialing a mobile telephone are both visual and manual distractions.

Using a hand-held mobile telephone may reduce a driver's situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. This rulemaking proposes to restrict the use of hand-held mobile telephones because our research indicates that they are a source of driver distraction that could pose a safety risk.

Specifically it would prohibit a CMV driver from reaching for, holding, or dialing a mobile telephone in order to conduct a voice communication while driving. Essentially, the CMV driver must be ready to conduct a voice communication in compliance with the proposed rule the moment he begins driving the vehicle.

In an effort to understand and mitigate crashes associated with driver distraction, the U.S. Department of Transportation (DOT) conducted research concerning behavioral and vehicle safety countermeasures to driver distraction. Data from studies indicate that both reaching for and dialing a mobile telephone increase the odds of involvement in a safety-critical event such as a crash, near crash, or unintended lane departure.

Both reaching for and dialing a hand- held mobile telephone are manual distractions (i.e., hands-off wheel) and require substantial visual distraction (i.e., eyes off forward roadway) to complete the task; therefore the driver may not be capable of safely operating the vehicle.

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