(ix) any violation of section 1225-c or section 1225-d of the Vehicle and Traffic Law involving the use of a mobile phone or portable electronic device.

This proposed regulation would exempt violations related to the operation of a motor vehicle while using a portable electronic device from the point system. Chapter 403 of the Laws of 2009 prohibits the operation of a motor vehicle while using such a device.

Section 510(3)(i) of the Vehicle and Traffic Law (VTL) provides that the Department of Motor Vehicles (the Department) may take license action against a motorist who persistently violates laws related to traffic. Part 131 establishes the point system, whereby specific point values are assigned for most traffic offenses. A person who accumulates 11 or more points within an 18 month period is deemed a persistent violator and is subject to a license suspension or revocation.

Part 131.3(b)(7) sets forth exemptions from the point system. For example, points are not assessed for violations involving registration, insurance, inspection, parking and equipment. In 2002, the Department, via a regulatory amendment, exempted mobile phone (also known as cell phone) violations (VTL section 1225-c) from the point system. The Department wrote in its regulatory submission that: "To the extent that certain instances of mobile telephone usage may result in erratic or unsafe driving, the conviction for a violation of section 1225-c will likely be accompanied by other Vehicle and Traffic Law violations which will, in and of themselves, result in the assessment of points under Part 131 and, therefore, aid in the identification of persistent violators."

The Department believes that it is appropriate to exempt violations of VTL section 1225-d involving the use of portable electronic devices from the point system for the same reason that we exempted violations of the mobile phone law, that is, such violations will most likely be accompanied by other violations that will result in the issuance of a traffic ticket. In fact, this reason is more compelling in relation to portable electronic devices because section 1225-d requires "secondary enforcement" of this statute, i.e., the officer may only issue a ticket for a violation of 1225-d if there is reasonable cause to believe that the motorist violated another provision of the law. Thus, it is highly likely that the portable electronic device violation will be accompanied by another violation that will result in the assignment of points.

Since this proposal is a logical extension of the exemption for mobile phones, it is appropriate to submit this as a consensus regulation.

Since this amendment is purely technical in nature and does not impose any additional burden on commercial motor vehicle operators, a consensus rulemaking is appropriate.

A Job Impact Statement is not submitted because this rule will have no adverse impact on job creation or job development in New York State.