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States May Not Enforce Ban on Texting, Law Officials Say
Monday, 08 February 2010 00:00
Agencies Seen Waiting for DOT Regulation

Law enforcement officials said they may not strictly enforce the Transportation Department’s recent ban on texting by commercial drivers until the government issues a specific regulation rather than reinterpretations of current rules, officials told Transport Topics.

“I think everyone is just taking stock of the change,” said Steve Keppler, interim executive director of the Commercial Vehicle Safety Alliance.

Keppler said many of his member agencies may wait to enforce the ban until the Federal Motor Carrier Safety Administration issues a new rule explicitly banning texting by drivers.

“I think a lot of it is really dependent on when FMCSA decides to do the rulemaking,” Keppler said. “It is my understanding that this was something they are trying to fast-track [it in a] month or two. If that’s the case, I would imagine most will wait for that.”

The ban, which was announced Jan. 26 by Transportation Secretary Ray LaHood and FMCSA Administrator Anne Ferro, is rooted in new enforcement guidance issued by the agency that makes texting while driving punishable by a fine of as much as $2,750.

Lt. Tom Fitzpatrick, commander of the Massachusetts State Police commercial vehicle unit, said that while the state has accepted FMCSA’s guidance, and the ban is “a valid regulation in Massachusetts, and it is a part of our enforcement program,” it was probable that drivers caught texting would not suffer a punishment.

“The problem is that the software doesn’t have the violation in it yet, so there is going to be . . . a period of ‘soft enforcement,’ which is basically education/noncitation enforcement until the gist of the regulation is well-known to the truck drivers and the troopers, so we’ll be waiting for the rule,” he said.

Fitzpatrick said officers were “absolutely” stopping truckers if they are seen texting, but those drivers may “find themselves the beneficiary of some soft enforcement,” rather than getting the $2,750 fine.

“It’s sort of toothless without enforcement,” American Trucking Associations President Bill Graves told TT in San Diego, adding that he’d heard other states such as California also won’t enforce the ban until the government issues a regulation.

Fitzpatrick told TT that Massachusetts probably would delay enforcing the ban until after FMCSA issues a rule, “out of fairness to the truckers.”

“When we understand the specific language of the rule, then obviously the enforcement will become far stricter,” he said. “It’s a little unfair to enforce a regulation against a truck driver unless he or she understands exactly what type of conduct is prohibited.”

Issuing the guidance, rather than publishing a rule, has led to confusion, some industry officials said, and could set a precedent for future rule changes.

“It raises concerns for us in the short-term because many of the implementation and enforcement questions are still out there and haven’t been ferreted out because there was no rulemaking process to do that,” said Rod Nofziger, director of government affairs for the Owner-Operator Independent Drivers Association.

“In the long term, we have concerns about the precedent it sets for how the department may move forward on actions related to trucking using that same sort of line of thought and perhaps circumventing the rulemaking process on those occasions as well,” Nofziger said.

Candice Tolliver, a spokeswoman for FMCSA, dismissed those concerns: “The process of issuing regulatory guidance is a long-standing practice at the U.S. Department of Transportation. The FMCSA has also periodically issued new regulatory guidance on specific issues.

“The guidance issued by the FMCSA is not intended as a substitute for the notice-and-comment rulemaking, but is used to explain how the existing regulations apply to a situation or circumstances not explicitly prescribed in the regulations,” she said.

Despite these concerns, the agency’s guidance “provides enforcement personnel with a powerful tool to crack down on this dangerous behavior,” Tolliver said.

The agency will issue a follow-up regulation that explicitly bans texting, she said.

“The FMCSA intends to issue a notice of proposed rulemaking that would prohibit texting by truck and bus drivers engaged in interstate commerce,” Tolliver said, adding that in the process, FMCSA would review public comments on the subject.

A DOT report said the rule should be on its way to the White House later this month. Tolliver said that in the meantime, “all interstate truck and bus drivers should take note of the new regulatory guidance and refrain from texting while driving.”

Transport Topics, 2/8/2010