FMCSA AND PHMSA ISSUE FINAL RULE PROHIBITING HAND-HELD USE OF CELLULAR PHONES

FMCSA and PHMSA have published a joint final rule restricting CMV interstate drivers and intrastate hazmat drivers’ use of hand-held cellular phones.  The final rule prohibits CMV drivers from holding, dialing, or reaching for a hand-held cellular phone but allows the use of hands-free devices.  Drivers may push a single button to initiate, answer, or terminate a call.  However, the rule prohibits all push-to-talk functions on cellular phones.  Citizen Band Radios, GPS, and fleet management systems are not included in the prohibition.  The rule makes hand-held use of a cellular phone a disqualifying offense for drivers and also subjects drivers and motor carriers to federal civil penalties.  FMCSA also stated its view to hold motor carriers accountable for violations committed by their drivers during the course of employment.  Finally, the rule contains an exemption to allow hand-held use for emergency purposes only.  The rule will take effect on January 3, 2012.

Summary of the Federal Restriction on Hand-held use of Cellular Phones for CDL Drivers

FMCSA and PHMSA issued a final rule that restricts the use of hand-held mobile telephones by interstate commercial motor vehicle drivers (CMV) and intrastate hazmat drivers. The rule does not restrict or prohibit the use of hands-free devices. The final rule was published in the Federal Register on December 2, 2011 and will take effect on January 3, 2012.

Changes:

1. The final rule prohibits CMV drivers from holding, dialing, or reaching for a hand-held cellular phone. This includes all push-to-talk functions. Hands-free use of a cellular phone is allowed. The ban does not prohibit or restrict the use of CB’s, GPS, or fleet management systems.

  1. Dialing – As defined by FMCSA, a driver is allowed to initiate, answer, or terminate a call by touching a single button on a mobile telephone or on a headset. This action should not require the driver to take his or her eyes off the road.
  2. Reaching – FMCSA banned reaching for a cellular phone or hands-free device that is done in “an unacceptable and unsafe manner.” Examples of this behavior would be reaching for a cellular phone on the passenger seat, under the driver’s seat, or into the sleeper berth. To be in compliance with the rule, a driver must have a cellular phone and/or hands-free device within “close proximity” to his or her person.
  3. Driving – The term “driving”means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, traffic control device, or other temporary delays.  “Driving” would not include operating a CMV when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.

 

2. Driver and Motor Carrier Penalties – Under the final rule, CMV drivers who are convicted of a hand-held cell violation twice within a three year period will be disqualified for 60 days. If convicted for a third violation within three years the driver will be disqualified for 120 days. Drivers will be subject to federal civil penalties of up to $2,750 for each offense. Motor carriers that allow their drivers to use hand-held cell phones while operating a commercial motor vehicle face a maximum civil penalty of $11,000 per violation.

 

3. Employer Liability – Within the language of the rule, FMCSA states that “no motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.” In the preamble, FMCSA interprets the regulatory language to mean that motor carriers are responsible for the actions of its drivers, regardless of whether or not such actions are sanctioned by the motor carrier. FMCSA will hold employers accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer’s behalf when a violation occurs.

 

4. State Requirement – States will be required to adopt the final regulations within three years of enactment as a condition of receiving full Motor Carrier Safety Assistance Program (MCSAP) funding. It will initially apply to all interstate carriers and intrastate HM carriers.  Because Maine adopts all of Part 392, the new rule will apply to intrastate carriers when Maine adopts the federal rules again through Chapter 4, anticipated to be in the February 2012 time frame.

 

5. Exemptions – The final rule does not apply to drivers engaging in harvest operations. The proposal also allows hand-held cell phone use by drivers for emergency purposes.

 

SAMPLE POLICY (MMTA)

MODEL COMPANY POLICY A (CVSA)

MODEL COMPAY POLICY B (CVSA)