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Cellphone ban for truckers inspires mixed opinions

Posted On: Dec. 11, 2011 12:00 AM CST

Cellphone ban for truckers inspires mixed opinions

Underwriters, trucking companies and industry groups have mixed opinions on the merits and potential impact of a new federal rule prohibiting commercial truckers and bus drivers from using hand-held cellphones while driving.

The new rule, announced jointly on Nov. 23 by the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, will impose civil fines of up to $2,750 for interstate truck drivers and bus drivers caught using hand-held cellphones, and $11,000 for employers that do not require their drivers to use hands-free devices.

Additionally, drivers can face disqualification from commercial driving for up to four months for multiple offenses in a given three-year period.

The ban, which goes into effect on Jan. 3, 2012, also applies to intrastate drivers transporting hazardous materials.

An estimated 4 million drivers nationwide will be affected by the new rule, according to the U.S. Department of Transportation.

Some experts believe the law will prove to be a win for drivers and their employers, significantly reducing the number of distracted-driver accidents nationwide and ultimately leading to lower insurance costs for commercial trucking and busing companies. However, others said they worry the rule could have unintended economic and safety consequences, will be difficult for employers and police to enforce and will have little to no effect on distraction-related accident rates in the long term.

“It's probably going to be a game changer for the industry if it can be enforced,” said Craig O'Connell, vehicular division vp at Boston-based Lexington Insurance Co.

Mr. O'Connell said while trucking and bus companies likely would not see an immediate reduction in their commercial auto insurance premium rates once the law takes effect, a sustained drop in the frequency and severity of traffic accidents caused by commercial truck and bus drivers would result in premium savings for insurance buyers over time.

“We'll have to wait and see on that,” Mr. O'Connell said. “I can't predict profitability, but (the law) can't hurt. It can really only help our loss picture.”

In particular, the attachment of compliance liability to the employer or contractor, not just the driver, has found support among underwriters, as it gives them a new metric by which to score a client's risk management program.

“Now that it's a regulation, those companies that are operating under the jurisdiction of the rule will have to talk to their insurers about their program regarding cellphones as part of the insurer's loss control assessment,” said Mike Heembrock, vp and commercial auto specialist for Chubb Corp. in Warren, N.J. “It will certainly become a part of what we look at when we evaluate how a company recognizes their hazards and establishes controls that would make them a better-than-average performer.”

The new rule also found moderate support among trucking companies and industry groups, though some of its provisions were less popular than others. In a brief filed during the rule's public comment period in February, the American Trucking Assn. said it generally supported the ban on hand-held cellphones and encouraged federal regulators to pass a similar rule outlawing hand-held cellphone use for noncommercial drivers as well. However, the association “strenuously objected” to the employer liability provision, calling it an “unrealistic and inappropriate shifting of the law enforcement burden to motor carrier management.”

“Drivers are not always under direct supervision, and it would be extremely difficult and, in fact, unrealistic for a carrier to enforce such a requirement,” the association said in its brief. “This is especially true when drivers use their own phones that are neither provided by nor paid for by their motor carrier employers.”

Dan Smith, safety and security director for Van Buren, Ark.-based USA Truck Inc., agreed that the rule is a net gain for the industry, but lamented that it does not address noncommercial drivers.

“We're only hitting a small population of drivers that are already the most heavily trained and heavily regulated drivers on the road,” Mr. Smith said. “Until we use the same common sense that we're using with the commercial vehicles, I think we're probably barking up the wrong tree.”

Approval of the rule was far from universal in the trucking community. The Grain Valley, Mo.-based Owner-Operated Independent Drivers Assn., which represents some 152,000 independent drivers, repeatedly has opposed the ban, arguing in its February public comment brief that “cell phone use is no more distracting than other types of communications and electronic equipment used regularly by truckers.”

The rule outlaws the use of push-to-talk functions, but does not affect citizens band radios.

“This is politics trumping reason and common sense,” said Joe Rajkovacz, director of regulatory affairs for OOIDA. Mr. Rajkovacz said FMCSA unfairly characterized statistics on distracted-driver accidents as attributable solely to commercial drivers to build support for the rule. Echoing his organization's brief, Mr. Rajkovacz said it is unlikely that the ban would, in and of itself, produce any measureable effect on the frequency or severity of distracted-driving accidents.

“It's throwing truckers under the bus,” he said. “It's regulating for pure posture and no net effect.”

Experts also warned that while the law may be a long-term boon for the trucking industry, some negative safety and economic effects were possible. The language of the new regulation, Mr. Smith said, only instructs drivers to pull over and park their trucks to use their hand-held phones. The law should have required drivers to find a rest stop or other designated parking area, he said, but instead likely will cause drivers to merely park on the shoulder of a highway.

“It's a potentially dangerous situation where you'll have truckers trying to re-enter highway traffic at 30 or 40 mph under the speed limit,” Mr. Smith said. “What concerns me is that in order to not break one law, you'll have drivers breaking two others, and there's no less danger involved.”

Additionally, the law could have some negative short-term effects on the finances of some trucking companies and insurers. With a black-and-white rule on the books holding employers accountable for their drivers' actions, it likely will be easier for parties injured in a distracted-driver accident to attach negligence liability to any company that does not implement a documentable compliance program for its drivers, said Lentz Merisier, a Boston-based senior vp of strategic marketing for Chartis U.S. Casualty, a division of Chartis Inc.

“Considering the negligence and punitive damages usually associated with that kind of a claim, now that it's a law and now that training manuals need to be updated, you could see severity spike in the short term,” said Mr. Merisier. “But once you get the first couple of judicial rulings of that nature, it'll send ripple effects and awareness throughout the industry.”