[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Proposed Rules]
[Pages 80014-80033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31736]



[[Page 80014]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383, 384, 390, 391, and 392

[Docket No. FMCSA-2010-0096]
RIN 2126-AB29


Drivers of CMVs: Restricting the Use of Cellular Phones

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to restrict the use of hand-held mobile telephones, including 
hand-held cell phones, by drivers of commercial motor vehicles (CMVs) 
while operating in interstate commerce. The Agency proposes new driver 
disqualification sanctions for interstate drivers of CMVs who fail to 
comply with this Federal restriction and new driver disqualification 
sanctions for commercial driver's license (CDL) holders who have 
multiple convictions for violating a State or local law or ordinance on 
motor vehicle traffic control that restricts the use of hand-held 
mobile telephones. Additionally, interstate motor carriers would be 
prohibited from requiring or allowing drivers of CMVs to engage in the 
use of a hand-held mobile telephone while operating in interstate 
commerce. This rulemaking would improve safety on the Nation's highways 
by reducing the prevalence of distracted driving-related crashes, 
fatalities, and injuries involving drivers of CMVs.

DATES: FMCSA will be accepting both initial comments and reply comments 
in response to this Notice of Proposed Rulemaking (NPRM). Send your 
initial comments on or before February 22, 2011 and reply comments on 
or before March 21, 2011. Initial comments may address any issue raised 
in the NPRM and the background documents in the docket (e.g., 
regulatory evaluation, studies, environmental assessment, etc.). 
Initial comments will be made available promptly electronically, online 
on http://www.regulations.gov, or for public inspection in room W12-
140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, between 
9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal 
holidays. In order to allow sufficient opportunity for interested 
parties to prepare and submit any reply comments, late-filed initial 
comments will not be considered. Reply comments must address only 
matters raised in initial comments and must not be used to present new 
arguments, contentions, or factual material that is not responsive to 
the initial comments.

ADDRESSES: You may submit comments and reply comments identified by 
docket number FMCSA-2010-0096 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rule, contact Mr. Brian Routhier, Transportation Specialist, 
Federal Motor Carrier Safety Administration, Vehicle and Roadside 
Operation Division, at 202-366-4325 or [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Abbreviations
III. Background
    A. Rationale for the Scope of the Proposed Rule
    B. Legal Authority
    C. Support for a Restriction on Mobile Telephones
    D. Studies of Mobile Telephone Use While Driving
    E. Existing Mobile Telephone Bans by Federal, State, and Local 
Governments
IV. Discussion of Proposed Rule
V. Regulatory Analyses

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments, reply comments, and related materials. All 
comments received will be posted without change to http://www.regulations.gov and will include any personal information you 
provide.

A. Submitting Comments

    If you submit a comment or a reply comment, please include the 
docket number for this rulemaking (FMCSA-2010-0096), indicate the 
specific section of this document to which each comment applies, and 
provide a reason for each suggestion or recommendation. You may submit 
your comments and material online or by fax, mail, or hand delivery, 
but please use only one of these means. FMCSA recommends that you 
include your name and a mailing address, an e-mail address, or a phone 
number in the body of your document so that FMCSA can contact you if 
there are questions regarding your submission.
    To submit your comment or reply comments online, go to http://www.regulations.gov and click on the ``submit a comment'' box, which 
will then become highlighted in blue. In the ``Document Type'' drop 
down menu, select ``Proposed Rules,'' insert ``FMCSA-2010-0096'' in the 
``Keyword'' box, and click ``Search.'' When the new screen appears, 
click on ``Submit a Comment'' in the ``Actions'' column. If you submit 
your comments by mail or hand delivery, submit them in an unbound 
format, no larger than 8\1/2\; by 11 inches, suitable for copying and 
electronic filing. If you submit comments by mail and would like to 
know that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments or reply comments, as well as any documents 
mentioned in this preamble, go to http://www.regulations.gov and click 
on the ``read comments'' box in the upper right hand side of the 
screen. Then, in the ``Keyword'' box insert ``FMCSA-2010-0096'' and 
click ``Search.'' Next, click the ``Open Docket Folder'' in the 
``Actions'' column. Finally, in the ``Title'' column, click on the 
document you would like to review. If you do not have access to the 
Internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays.

C. Privacy Act

    Anyone is able to search the electronic form of all comments

[[Page 80015]]

received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316).

II. Abbreviations

AAMVA                              American Association of Motor Vehicle
                                    Administrators
ABA                                American Bus Association
Advocates                          Advocates for Highway and Auto Safety
ATA                                American Trucking Associations, Inc.
APTA                               American Public Transportation
                                    Association
CDL                                Commercial Driver's License
CMV                                Commercial Motor Vehicle
CTA                                Chicago Transit Authority
DOT                                United States Department of
                                    Transportation
EA                                 Environmental Assessment
EIS                                Environmental Impact Statement
FCC                                Federal Communications Commission
FMCSA                              Federal Motor Carrier Safety
                                    Administration
FMCSRs                             Federal Motor Carrier Safety
                                    Regulations
FONSI                              Finding of No Significant Impact
FR                                 Federal Register
FRA                                Federal Railroad Administration
GCRTA                              Greater Cleveland Regional Transit
                                    Authority
MBTA                               Massachusetts Bay Transportation
                                    Authority
MCSAC                              Motor Carrier Safety Advisory
                                    Committee
MCSAP                              Motor Carrier Safety Assistance
                                    Program
NAICS                              North American Industry
                                    Classification System
NCSL                               National Conference of State
                                    Legislatures
NGA                                National Governors Association
NPRM                               Notice of Proposed Rulemaking
NSC                                National Safety Council
NTSB                               National Transportation Safety Board
OOIDA                              Owner-Operator Independent Drivers
                                    Association
OMB                                Office of Management and Budget
PAR                                Population Attributable Risk
PDA                                Personal Digital Assistant
TCA                                Truckload Carriers Association
VTTI                               Virginia Tech Transportation
                                    Institute
------------------------------------------------------------------------

III. Background

A. Rationale for the Scope of the Proposed Rule

    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 \1\ 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.\2\ 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.
---------------------------------------------------------------------------

    \1\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. 
(2009) Driver distraction in commercial vehicle operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration, July 2009. Retrieved October 20, 
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010). 
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: 
Federal Motor Carrier Safety Administration.
    \2\ In popular usage, mobile telephones are often referred to as 
``cell phones.'' As explained later in the NPRM, a variety of 
different technologies are licensed by the Federal Communications 
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; 
thus, the proposed rules here would apply to the range of 
technologies used to provide wireless telephone communications and 
the rule uses the broader term ``mobile telephones.'' However, some 
of the materials discussed in this preamble use the popular term 
``cell phone,'' and the discussion continues that usage in such 
cases.
---------------------------------------------------------------------------

    According to a VTTI study, the odds of being involved in a safety-
critical event are three times greater when the driver is reaching for 
an object than when the driver is not reaching for an object. The odds 
of being involved in a safety-critical event are six times greater 
while the driver is dialing a cell phone than when the driver is not 
dialing a cell phone. These increases in risk are primarily 
attributable to the driver's eyes being off the forward roadway. 
Additionally, these activities have high population attributable risk 
(PAR) percentages (i.e., an activity, which if not undertaken, would 
increase safety most).\3\ The PAR percentage for reaching for an object 
was the highest in the study at 7.6 percent. Because of the physical, 
manual, and visual distractions and the data indicating a safety risk 
associated with the use of hand-held mobile telephones, FMCSA believes 
it is in the interest of public safety to propose, at a minimum, a 
restriction on hand-held mobile telephone use while driving a CMV.
---------------------------------------------------------------------------

    \3\ See Section D. Studies of Mobile Telephone Use While Driving 
for a full discussion.
---------------------------------------------------------------------------

    Other governmental entities have made recommendations on mobile 
telephone use that go beyond our proposed rule. The National 
Transportation Safety Board (NTSB) determined that one probable cause 
of a November 2004 bus crash was the use of a hands-free cell phone. 
This crash was the impetus for an NTSB investigation (NTSB/HAR-06/04 
PB2007-916201) and a subsequent recommendation to FMCSA that the Agency 
prohibit cell phone use by all passenger-carrying CMVs.\4\ FMCSA also 
received recommendations on cell phone use from its Motor Carrier 
Safety Advisory Committee (MCSAC). One of MCSAC's recommendations for 
the National Agenda for Motor Carrier Safety was that FMCSA initiate a 
rulemaking to ban the use of hand-held and hands-free mobile telephones 
while driving.
---------------------------------------------------------------------------

    \4\ National Transportation Safety Board (2006) Motorcoach 
Collision with the Alexandria Avenue Bridge Overpass, George 
Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 
(Highway Accident Report NTSB/HAR-06/04; NTIS report number PB2007-
916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
---------------------------------------------------------------------------

    However, it is not clear if simply talking on a mobile telephone 
presents a significant risk. For example, the same VTTI study that 
detailed the risks of reaching and dialing found that ``talking

[[Page 80016]]

or listening to a hands-free phone'' and ``talking or listening to a 
hand-held phone'' were relatively low risk activities and had only 
brief periods of eyes off forward roadway. It is the action of taking 
one's eyes off the forward roadway to reach for and dial the mobile 
telephone that is highly risky. Therefore, our proposal does not go as 
far as the NTSB and MCSAC recommendations.
    While some States have gone further than this proposed restriction 
on hand-held mobile telephones, no State has completely banned mobile 
telephone use. Nine States and the District of Columbia have traffic 
laws prohibiting all motor vehicle drivers from using a hand-held 
mobile telephone while driving. Some States have gone further for 
certain categories of drivers. Nineteen States and the District of 
Columbia prohibit the use of all mobile telephones while driving a 
school bus. Transit bus and motorcoach drivers are the focus of 
stricter mobile telephone rules in some States and local 
jurisdictions.\5\ This NPRM, which proposes to restrict hand-held 
mobile telephone use by all CMV drivers, is in line with existing 
regulations that hold CMV drivers to higher standards.
---------------------------------------------------------------------------

    \5\ IIHS list of cellphone laws. http://www.iihs.org/laws/cellphonelaws.aspx
---------------------------------------------------------------------------

    This rulemaking would improve safety on the Nation's highways by 
reducing the prevalence of, or preventing, certain truck- and bus-
related crashes, injuries, and fatalities associated with distracted 
driving. Our proposal would restrict hand-held mobile telephone use, 
but the Agency requests comment on whether we should implement in full 
the NTSB and MCSAC recommendations. The Agency requests public comment 
on the feasibility, operational impact, and safety benefits of 
prohibiting hands-free mobile telephone technology by drivers of CMVs 
as well. Because the Agency does not intend that this rulemaking 
preclude the use of innovative technologies that could be safely used 
by CMV drivers to facilitate mobile telephone use, the Agency will 
consider, through this rulemaking process, all information from 
interested parties, as it assesses the risks, feasibility, and safety 
of adopting an approach in the final rule. Public comment on these 
issues should also recognize our responsibility to ensure that CMV 
drivers are held to the highest degree of safety.

B. Legal Authority

    The authority for this proposed rule derives from the Motor Carrier 
Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the 
Commercial Motor Vehicle Safety Act of 1986 (1986 Act), 49 U.S.C. 
chapter 313. The 1984 Act (Pub. L. 98-554, Title II, 98 Stat. 2832, 
Oct. 30, 1984) provides authority to regulate the safety of operations 
of CMV drivers and motor carriers and vehicle equipment. It requires 
the Secretary of Transportation (Secretary) to ``prescribe regulations 
on commercial motor vehicle safety. The regulations shall prescribe 
minimum safety standards for commercial motor vehicles.'' Although this 
authority is very broad, the 1984 Act also includes specific 
requirements in 49 U.S.C. 31136(a):

    At a minimum, the regulations shall ensure that--(1) commercial 
motor vehicles are maintained, equipped, loaded, and operated 
safely; (2) the responsibilities imposed on operators of commercial 
motor vehicles do not impair their ability to operate the vehicles 
safely; (3) the physical condition of operators of commercial motor 
vehicles is adequate to enable them to operate the vehicles safely; 
and (4) the operation of commercial motor vehicles does not have a 
deleterious effect on the physical condition of the operators.

    This proposed rule is based primarily on 49 U.S.C. 31136(a)(1), 
which requires regulations that ensure that CMVs are operated safely, 
and secondarily on section 31136(a)(2), to the extent that drivers' use 
of mobile telephones might impact their ability to operate CMVs safely. 
This NPRM does not address the physical condition of drivers (49 U.S.C. 
31136(a)(3)), nor does it impact possible physical effects caused by 
driving CMVs (49 U.S.C. 31136(a)(4)).
    The relevant provisions of the Federal Motor Carrier Safety 
Regulations (FMCSRs) (49 CFR subtitle B, chapter III, subchapter B) 
apply to CMV drivers and employers operating a CMV included in the 
statutory authority of the 1984 Act. The 1984 Act defines a CMV as a 
self-propelled or towed vehicle used on the highways to transport 
persons or property in interstate commerce; and that either: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 10,001 pounds or 
greater; (2) is designed or used to transport more than 8 passengers 
(including the driver) for compensation; (3) is designed or used to 
transport more than 15 passengers, not for compensation; or (4) is 
transporting any quantity of hazardous materials requiring placards to 
be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating 
CMVs are subject to the FMCSRs, except those who are employed by 
Federal, State, or local governments (49 U.S.C. 31132(2)). The proposed 
rule would also require employers to ensure their drivers comply with 
the restrictions on use of hand-held mobile telephones while driving 
CMVs.
    In addition to the statutory exemption for government employees, 
there are several regulatory exemptions in the FMCSRs that are 
authorized under the 1984 Act, including, among others, one for school 
bus operations and one for CMVs designed or used to transport between 9 
and 15 passengers (including the driver) not for direct compensation 
(49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only 
applies to interstate transportation of school children and/or school 
personnel between home and school. This particular exemption is not 
based on any statutory provisions, but is instead a discretionary rule 
promulgated by the Agency. Therefore, FMCSA has authority to modify the 
exemption. Modification of the school bus operations exemption requires 
the Agency to find that such action ``is necessary for public safety, 
considering all laws of the United States and States applicable to 
school buses'' (former 49 U.S.C. 31136(e)(1)).\6\ Likewise, FMCSA has 
authority to modify the non-statutory exemption for small, passenger-
carrying vehicles not for direct compensation, but is not required to 
comply with former 49 U.S.C. 31136(e).\7\ FMCSA is proposing to apply 
restrictions on hand-held mobile telephone use to both school bus 
operations by private operators in interstate commerce and small 
passenger-carrying vehicles not for direct compensation, although they 
would continue to be exempt from the rest of the FMCSRs. Other than 
transportation covered by statutory

[[Page 80017]]

exemptions, FMCSA has authority to restrict the use of mobile 
telephones by drivers operating CMVs.
---------------------------------------------------------------------------

    \6\ Former section 31136(e)(1) was amended by section 4007(c) of 
the Transportation Equity Act for the 21st Century, Public Law 105-
178, 112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 
also provides that the amendments made by section 4007(c) ``shall 
not apply to or otherwise affect a waiver, exemption, or pilot 
program in effect on the day before the date of enactment of [TEA-
21] under * * * section 31136(e) of title 49, United States Code.'' 
(Section 4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 
U.S.C. 31136).) The exemption for school bus operations in 49 CFR 
390.3(f)(1) became effective on November 15, 1988, and was adopted 
pursuant to section 206(f) of the 1984 Act, later codified as 
section 31136(e) (Federal Motor Carrier Safety Regulations; General, 
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law 
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by 
FMCSA affecting the school bus operations exemption would require 
the Agency to comply with former section 31136(e)(1).
    \7\ The exemption in 49 CFR 390.3(f)(6) was not adopted until 
2003, after the enactment of TEA-21, in a final rule titled, 
``Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used In Interstate Commerce'' (68 FR 
47860, August 12, 2003).
---------------------------------------------------------------------------

    For any violation, such a restriction may be subject to civil 
penalties imposed on drivers, in an amount up to $2,750, and on 
employers, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 
386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of 
a CMV driver for violations of the Act and its regulations is also 
within the scope of the Agency's authority under the 1984 Act. Such 
disqualifications are specified by regulation for other violations (49 
CFR 391.15), and were recently adopted by the Agency in its final rule 
prohibiting texting by CMV drivers while operating in interstate 
commerce (49 CFR 391.15(e); 75 FR 59118, September 27, 2010). In 
summary, both a restriction on the use of hand-held mobile telephones 
and associated sanctions, including civil penalties and 
disqualifications, are authorized by statute and regulation for 
operators of CMVs, as defined above, in interstate commerce, with 
limited exceptions. But before prescribing any regulations under the 
1984 Act, FMCSA must consider their costs and benefits (49 U.S.C. 
31136(c)(2)(A)).
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 
27, 1986), which authorized creation of the CDL program, is the primary 
basis for licensing programs for certain large CMVs. There are several 
key distinctions between the authority conferred under the 1984 Act and 
that under the 1986 Act. First, the CMV for which a CDL is required is 
defined under the 1986 Act, in part, as a motor vehicle operating ``in 
commerce,'' a term separately defined to cover broadly both interstate 
commerce and operations that ``affect'' interstate commerce (49 U.S.C. 
31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle 
used in commerce to transport passengers or property that: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 26,001 pounds or 
greater; (2) is designed to transport 16 or more passengers including 
the driver; or (3) is used to transport certain quantities of 
``hazardous materials,'' as defined in 49 CFR 383.5 (49 U.S.C. 
31301(4)). In addition, a provision in the FMCSRs implementing the 1986 
Act recognizes that all school bus drivers (whether government 
employees or not) and other government employees operating vehicles 
requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or 
designed to transport 16 or more passengers) are subject to the CDL 
standards set forth in 49 CFR 383.3(b).
    There are several statutory and regulatory exceptions from the CDL 
requirements, which include the following individuals: Military service 
members who operate a CMV for military purposes (a mandatory exemption 
for the States to follow) (49 CFR 383.3(c)); farmers; firefighters; CMV 
drivers employed by a unit of local government for the purpose of snow/
ice removal; and persons operating a CMV for emergency response 
activities (all of which are permissive exemptions for the States to 
implement at their discretion) (49 CFR 383.3(d)). States may also issue 
certain restricted CDLs to other categories of drivers under 49 CFR 
383.3(e)-(g). Drivers with such restricted CDLs may still be covered by 
a disqualification under the 1986 Act arising from the use of hand-held 
mobile telephones while driving CMVs.
    The 1986 Act does not expressly authorize the Agency to adopt 
regulations governing the safety of CMVs operated by drivers required 
to obtain a CDL. Most of these drivers (those involved in interstate 
trade, traffic, or transportation) are subject to safety regulations 
under the 1984 Act, as described above. The 1986 Act, however, does 
authorize disqualification of CDL drivers by the Secretary. It contains 
specific authority to disqualify CDL drivers for various types of 
offenses, whether those offenses occur in interstate or intrastate 
commerce. This authority exists even if drivers are operating a CMV 
illegally because they did not obtain a CDL.
    In general, the 1986 Act explicitly identifies several ``serious 
traffic violations'' as grounds for disqualification (49 U.S.C. 
31301(12) and 31310). In addition to the specifically enumerated 
``serious traffic violations,'' the 1986 Act provides related authority 
that allows FMCSA to designate additional serious traffic violations by 
rulemaking if the underlying offense is based on the CDL driver 
committing a violation of a ``State or local law on motor vehicle 
traffic control'' (49 U.S.C. 31301(12)(G)). The FMCSRs state, however, 
that unless and until a CDL driver is convicted of the requisite number 
of specified offenses within a certain time frame (described below), 
the required disqualification may not be applied (49 CFR 383.5 
(defining ``conviction'' and ``serious traffic violation'') and 
383.51(c)).
    Under the statute, a driver who commits two serious traffic 
violations in a 3-year period while operating a CMV must be 
disqualified from operating a CMV that requires a CDL for at least 60 
days (49 U.S.C. 31310(e)(1)). A driver who commits three or more 
serious traffic violations in a 3-year period while operating a CMV 
must be disqualified from operating a CMV that requires a CDL for at 
least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile 
telephones results in distracted driving and increases the risk of CMV 
crashes, fatalities, and injuries, FMCSA is now proposing that 
violations by a CDL driver of State or local law or ordinance on motor 
vehicle traffic control that restricts the use of such mobile 
telephones while driving CMVs should result in a disqualification under 
this provision.
    FMCSA is authorized to carry out these statutory provisions by 
delegation from the Secretary as provided in 49 CFR 1.73(e) and (g).

C. Support for a Restriction on Mobile Telephones

    There is an overwhelming amount of public support for reducing 
distracted driving, including hand-held mobile telephone use, while 
operating a CMV. It is likely that most motorists either have first-
hand experience with or know someone who had a motor vehicle crash or 
near-crash event involving a distracted driver. There appears to be a 
steady increase in the use of electronic devices. Moreover, as outlined 
in the examples below, there is some evidence that CMV crashes and 
other incidents have been caused by the use of electronic devices.
    FMCSA is aware of several recent CMV crashes in which the use of a 
mobile telephone may have contributed to the crash. In one case, 
according to media reports, a truck driver from Arkansas told police 
she was talking on her cell phone when she became involved in a crash 
that killed two boys on May 9, 2010. In another media report, on March 
26, 2010, a tractor trailer crossed the median strip of Interstate 65 
in central Kentucky and collided with a van transporting 9 adults, two 
children, and an infant. All the adults and the infant in the van and 
the truck driver were killed. The NTSB is conducting an investigation 
into the crash, including attempting to determine if a mobile telephone 
was a factor in the crash.\8\ According to media reports, in February 
2010, a Montgomery County, Pennsylvania, school bus driver was 
allegedly talking on his cell phone before a deadly crash.\9\
---------------------------------------------------------------------------

    \8\ http://www.ntsb.gov/Pressrel/2010/100514.html.
    \9\ Driver To Stand Trial In Fatal School Bus Crash. (April 20, 
2010) Philadephia, PA: KYW-TV. Retrieved from the CBS3 Web site, 
July 21, 2010, from: http://cbs3.com/local/montgomery.county.school.2.1645628.html.
---------------------------------------------------------------------------

    In light of these incidents and the potential for more crashes due 
to

[[Page 80018]]

distracted driving, FMCSA proposes restrictions on the use of hand-held 
mobile telephones. We are requesting comments on whether to propose a 
complete prohibition on mobile telephone use by drivers of CMVs. We 
have included in this NPRM information on research studies as well as 
the positions of safety organizations and industry on the use of mobile 
telephones by CMV drivers.
National Transportation Safety Board Recommendation
    On November 14, 2004, a motorcoach crashed into a bridge overpass 
on the George Washington Memorial Parkway in Alexandria, Virginia. The 
National Transportation Safety Board (NTSB) determined that one 
probable cause of the crash was the use of a hands-free cell phone, 
resulting in cognitive distraction; therefore, the driver did not 
``see'' the low bridge warning signs. This crash was the impetus for an 
NTSB investigation (NTSB/HAR-06/04 PB2007-916201) and a subsequent 
recommendation to FMCSA regarding cell phone use by passenger-carrying 
CMVs.\10\ This rulemaking addresses part of this outstanding 
recommendation.
---------------------------------------------------------------------------

    \10\ National Transportation Safety Board (2006) Motorcoach 
Collision with the Alexandria Avenue Bridge Overpass, George 
Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 
(Highway Accident Report NTSB/HAR-06/04; NTIS report number PB2007-
916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
---------------------------------------------------------------------------

    In a letter to NTSB, dated March 5, 2007, the Agency agreed to 
initiate a study to assess:
     The potential safety benefits of restricting cell phone 
use by drivers of passenger-carrying CMVs,
     The applicability of an NTSB recommendation to property-
carrying CMV drivers,
     Whether adequate data existed to warrant a rulemaking, and
     The availability of statistically meaningful data 
regarding cell phone distraction. Subsequently, the report ``Driver 
Distraction in Commercial Vehicle Operations'' (VTTI Study (2009)) was 
published on October 1, 2009. This report is summarized in section D.
    Also in 2004, the NTSB investigated a truck-tractor median 
crossover crash in Sherman, Texas, that resulted in a collision and 
fire. The NTSB's report cited one probable cause as the driver's 
attempted or imminent use of a wireless device as a distraction from 
his driving duties.
    The Agency will post in the rulemaking docket any additional 
information it obtains about these investigations that might not be 
generally available to the public.
FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
    Section 4144 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to 
establish a Motor Carrier Safety Advisory Committee (MCSAC). The 
committee provides advice and recommendations to the FMCSA 
Administrator on motor carrier safety programs and regulations and 
operates in accordance with the Federal Advisory Committee Act (5 
U.S.C. App. 2).
    In MCSAC's March 27, 2009, report to FMCSA titled ``Developing a 
National Agenda for Motor Carrier Safety,'' MCSAC recommended that 
FMCSA adopt new Federal rules concerning distracted driving.\11\ MCSAC 
reported, ``Documented research shows that there are cognitive 
distractions and increases in crashes from cellular phone use and text 
messaging.'' Therefore, one of MCSAC's recommendations for the National 
Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to 
ban the use of hand-held and hands-free mobile telephones while 
driving.
---------------------------------------------------------------------------

    \11\ Parker, David R., Chair, Motor Carrier Safety Advisory 
Committee (March 27, 2009). Letter to Rose A. McMurray, Acting 
Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor 
Vehicle Safety. Retrieved July 23, 2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-01FinalReportandLettertoAdministrator090428.pdf.
---------------------------------------------------------------------------

Motorcoach Safety Action Plan
    In the November 2009 DOT Motorcoach Safety Action Plan, DOT 
identified seven priority action items that will have the greatest 
impact in reducing motorcoach crashes, injuries, and fatalities. One of 
these is a recommendation to initiate rulemaking to propose prohibiting 
texting and limiting the use of mobile telephones and other devices by 
motorcoach drivers.\12\
---------------------------------------------------------------------------

    \12\ U.S. Department of Transportation (November 2009). 
Motorcoach Safety Action Plan. (DOT HS 811 177). Retrieved July 23, 
2010, from: http://www.fmcsa.dot.gov/documents/safety-security/MotorcoachSafetyActionPlan_finalreport-508.pdf.
---------------------------------------------------------------------------

Distracted Driving Summit
    The information and feedback DOT received during its Distracted 
Driving Summit, held September 30-October 1, 2009, in Washington, DC, 
demonstrated both the need and widespread support for a ban against 
texting and mobile telephone use while driving. Attendees included 
safety experts; researchers; elected officials, including four U.S. 
Senators and several State legislators; safety advocacy groups; senior 
law enforcement officials; and representatives of the 
telecommunications and transportation industries. Summit participants 
shared their expertise, experiences, and ideas for reducing distracted 
driving behaviors. They addressed the safety risk posed by this growing 
problem across all modes of surface transportation.
    U.S. Transportation Secretary Ray LaHood stated: ``Keeping 
Americans safe is without question the Federal government's highest 
priority--and that includes safety on the road, as well as on mass 
transit and rail.'' In addition, the Secretary pledged to work with 
Congress to ensure that the issue of distracted driving is 
appropriately addressed.\13\ At the conclusion of the Summit, the 
Secretary announced a series of concrete actions that the Obama 
Administration and DOT are taking to address distracted driving, 
including immediately starting rulemakings that would ban texting and 
restrict, to the extent possible, the use of mobile telephones by truck 
and interstate bus operators, as well as to initiate rulemaking by the 
Federal Railroad Administration (FRA) to codify provisions of the FRA's 
Emergency Order No. 26 regarding restricting distracting electronic 
devices (see discussion below in Part E).
---------------------------------------------------------------------------

    \13\ U.S. Department of Transportation (October 1, 2009). U.S. 
Transportation Secretary Ray LaHood Announces Administration-Wide 
Effort to Combat Distracted Driving (DOT 156-09). Retrieved July 23, 
2010, from: http://www.dot.gov/affairs/2009/dot15609.htm.
---------------------------------------------------------------------------

    As a follow-up to the Summit, and based on data from studies on 
distracted driving, FMCSA initiated a number of actions to combat 
distracted driving by CMV drivers. Specifically, FMCSA issued 
Regulatory Guidance (75 FR 4305, January 27, 2010) that addressed 
texting by CMV drivers and issued a final rule (75 FR 59118, September 
27, 2010) that prohibits texting by CMV drivers. Finally, DOT held a 
second Distracted Driving Summit on September 21, 2010,
Safety Advocacy Organizations
    Numerous safety advocacy groups voiced support for a prohibition on 
mobile telephone use while driving. In January 2009, the National 
Safety Council (NSC) called for a nationwide prohibition on all cell 
phone use while driving.\14\ The NSC is focused on

[[Page 80019]]

alerting the American public to the fact that different distractions 
have different levels of crash risk. Additionally, Advocates for 
Highway and Auto Safety (Advocates) applauded DOT's effort to consider 
banning texting and restricting cell phone use by operators of CMVs. 
Advocates recently filed a petition for rulemaking requesting 
consideration of such action on the use of a wide array of electronic 
devices used by commercial drivers.\15\
---------------------------------------------------------------------------

    \14\ National Safety Council, (n.d.). Distracted Driving. 
Retrieved July 21, 2010, from: http://www.nsc.org/safety_road/Distracted_Driving/Pages/distracted_driving.aspx.
    \15\ Gillan, J.S. (October 1, 2009). Safety Advocates Respond to 
U.S. DOT Secretary's Announcement on Measures to Reduce Distracted 
Driving by Commercial Operators. Retrieved July 21, 2010, from the 
Advocates for Highway and Auto Safety Web site: http://www.saferoads.org/files/file/Distracted%20Driving%20Statement%20by%20Judith%20Stone%20October%201,%202009.pdf.
---------------------------------------------------------------------------

Transportation Industry Associations
Trucking Industry
    The American Trucking Associations, Inc. (ATA) adopted a policy 
supporting the safe use of technologies and encourages drivers and/or 
motor carriers to consider a range of policies and safeguards intended 
to reduce, minimize, and/or eliminate driver distractions that may be 
caused by the increased use of electronic technologies. ATA's policy 
recommends that manufacturers and others adopt awareness, training, and 
safety policies on the use of such technologies--unless they are 
already regulated--while operating a motor vehicle. ATA believes that 
the use of hand-held electronic devices and the act of texting with 
such devices while a motor vehicle is in motion should be 
prohibited.\16\ Another one of the initiatives on ATA's safety agenda 
is their policy on the use of non-integrated technologies while the 
vehicle is in motion.\17\
---------------------------------------------------------------------------

    \16\ American Trucking Associations (October 29, 2009). 
Addressing the Problem of Distracted Driving. Written testimony to 
the Subcommittee on Highways and Transit, U.S. House of 
Representatives' Transportation and Infrastructure Committee. 
Retrieved July 21, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
    \17\ Boyce, C. (June 9, 2009) ATA Unveils Progressive New 
Highway Safety Agenda. Retrieved July 21, 2010, from: http://www.truckline.com/pages/article.aspx?id=541%2F%7b8E1C7279-ED27-4C03-B189-CEEEE26BBB12%7d
---------------------------------------------------------------------------

    In fact, many ATA member fleets have already adopted company 
policies designed to reduce distractions while operating CMVs. Many of 
these fleets do not allow drivers to operate any electronic devices at 
all, including dispatching equipment, while the vehicle is moving. ATA 
conducted an opinion survey of its safety committees on the use of 
``non-integrated electronic devices.'' From the responses of these 
industry leaders, ATA found that 67 percent of respondents had a policy 
restricting or limiting the use of portable electronic devices while 
driving. United Parcel Service, Inc. has an existing policy of no 
distractions while behind the wheel (e.g., two hands on the wheel and 
no two-way communication); and FedEx does not allow drivers to use any 
electronic device while operating FedEx vehicles.\18\ Additionally, 
ExxonMobil and Shell are examples of large companies that prohibit 
employees' use of any type of cell phone while driving during work 
hours.\19\ Because numerous large commercial trucking operations 
already have policies that prohibit the use of portable electronic 
devices while driving, a restriction on hand-held mobile telephone use 
is not expected to have a significant adverse impact on trucking 
fleets.
---------------------------------------------------------------------------

    \18\ Halsey, A. (October 2, 2009). Obama to Federal Employees: 
Don't Text and Drive. Washingtonpost.com. Retrieved July 21, 2010, 
from: http://www.washingtonpost.com/wp-dyn/content/article/2009/10/01/AR2009100103447_pf.html.
    \19\ Insurance Information Institute (December 2009). Cellphones 
and Driving. Retrieved July 21, 2010, from: http://www.iii.org/IU/Cellphone-and-driving/.
---------------------------------------------------------------------------

    The Owner-Operators Independent Drivers Association (OOIDA) called 
upon government entities to aggressively pursue opportunities to 
educate the motoring public on safe driving practices and encourages 
law enforcement agencies to fully enforce existing laws pertaining to 
inattentive or negligent driving.\20\ The Truckload Carriers 
Association (TCA) supports the safe use of technologies and encourages 
drivers and/or motor carriers to consider a range of policies and 
safeguards intended to reduce, minimize, and/or eliminate driver 
distractions caused by the increased use of electronic technologies 
(e.g., global positioning systems, cellular phones, etc.) during the 
operation of all types of motor vehicles.\21\
---------------------------------------------------------------------------

    \20\ OOIDA (n.d.). Distracted Driving. Retrieved from the OOIDA 
Web site, July 22, 2010, from: http://ooida.com/Issues&Actions/Issues/DistractedDriving/distracted-driving.htm.
    \21\ Truckload Carriers Association (March 8, 2009). Safe Use of 
Technology. Retrieved July 21, 2010, from: http://www.truckload.org/Safe-Use-of-Technology.
---------------------------------------------------------------------------

Motorcoach Operators
    A spokesman for the United Motorcoach Association, which represents 
tour bus operators, stated that motorcoach operators should not 
tolerate drivers using mobile telephones unless there is an emergency. 
The American Bus Association (ABA) supports safety initiatives, and the 
safety culture of ABA and its member operators support such bans. ABA's 
pre-trip passenger safety messaging video instructs passengers, not 
drivers, to dial 911 in case of emergency. Only in extreme emergencies 
should drivers ever use a cell phone while operating motorcoaches. 
Furthermore, ABA asserted that hands-free use of cell phones is no 
better than hand-held cell phone use, as cognitive distraction is the 
safety issue in question.\22\ The ABA also drafted a model policy for 
members that states in part: ``Cell phones and regulated electronic 
devices (REDs) are not to be used while the vehicle is in motion. 
Incoming calls or transmissions received on company-provided or 
authorized cell phones or REDs should go into voicemail and may be 
checked only when the bus is parked in a safe location.''\23\ Numerous 
large motorcoach and bus operations have already adopted policies that 
restrict the use of portable electronic devices while driving (many of 
them are more restrictive than the ABA model policy).
---------------------------------------------------------------------------

    \22\ Pantuso, P. (October 6, 2009). Government Seeks Tougher 
Laws on Distracted Driving. Retrieved July 21, 2010, from the 
American Bus Association Web site: http://www.buses.org/files/MemberAlertTextingCellPhones100509[1].pdf.
    \23\ ABA Strategic Safety Committee (2010). Recommended Model 
Company Policy: Cell Phones and Electronic Devices (REDs). Available 
in the docket for this rulemaking.
---------------------------------------------------------------------------

School Bus Operations
    School bus operations are the focus of many States and local 
governments that have implemented distracted driving policies and laws; 
currently, 19 States and the District of Columbia \24\ ban school bus 
drivers from using a mobile telephone while driving. Many cities, 
towns, and counties prohibit mobile telephone use or texting by school 
bus operators. The American School Bus Council, whose membership 
includes: National Association for Pupil Transportation, National 
Association of State Directors of Pupil Transportation Services, 
National School Transportation Association, Blue Bird Corporation, IC 
Corporation, and Thomas Built Buses, recommends prohibiting the use of 
cell phones or other portable electronic devices--even those equipped 
with hands-free features--while driving and banning the use of cell 
phones while supervising the loading and unloading of students.\25\
---------------------------------------------------------------------------

    \24\ Vermette, E. (2010). Curbing Distracted Driving 2010 Survey 
of State Safety Programs. Retrieved July 21, 2010, from: http://www.distraction.gov/files/research/GHSA-2010_distraction.pdf.
    \25\ American School Bus Council (February 14, 2007). American 
School Bus Council Exceeds NTSB's Recommendation on Cell Phone Use 
by School Bus Drivers. Retrieved July 23, 2010, from: http://www.americanschoolbuscouncil.org/uploads/pdf/Guidelines_Release.pdf.

---------------------------------------------------------------------------

[[Page 80020]]

American Public Transportation Association (APTA)
    On December 31, 2009, the APTA Bus Safety Working Group published a 
Recommended Practice regarding employee-controlled distractions while 
operating a vehicle on agency time. The intent of the voluntary 
standard is to provide transit agencies with a guideline to develop 
policies and standard operating procedures regarding operator 
controlled distractions.\26\
---------------------------------------------------------------------------

    \26\ APTA Bus Safety Working Group (December 31, 2009). Reducing 
Driver-Controlled Distractions While Operating a Vehicle on Agency 
Time. Retrieved from the American Public Transportation Association 
Web site, July 23, 2010, from: http://www.aptastandards.com/Portals/0/Bus_Published/APTA-BTS-BS-RP-005-09_employee_controlled_distractions.pdf.
---------------------------------------------------------------------------

    FMCSA solicits comments about companies' or organizations' policies 
on drivers' use of mobile telephones and other portable electronic 
devices while driving CMVs on our Nation's highways.

D. Studies of Mobile Telephone Use While Driving

    There are a number of studies from both government and private 
sources related to distracted driving. However, there are few studies 
of distracted driving that focus on the CMV driver. The following peer-
reviewed studies were considered while developing this NPRM. These 
studies use different methodologies to analyze driver distraction. 
There are advantages and disadvantages to each methodology as follows:
     Simulator studies, and to some extent test-track studies, 
allow for experimental control over and measurement of the cognitive 
distractions, such as the type of phone conversation. These studies may 
have unrealistic driving and cell phone use conditions because they are 
not conducted on public roadways and therefore lack many of the risks 
associated with real world driving;
     Naturalistic driving studies use cameras and 
instrumentation in participants' vehicles to provide a clear picture of 
driver distraction under real-world driving conditions. However, these 
studies may have a small sample size of some of the individual 
distractions.

Overall, it is important to keep these differences in mind while 
comparing the results from different research methods. Regardless, 
these studies illustrate degradations in driver performance due to the 
effects of driver distraction.
Driver Distraction in Commercial Vehicle Operations \27\
---------------------------------------------------------------------------

    \27\ Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. 
(2009). Driver Distraction in Commercial Vehicle Operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: FMCSA, July 2009. 
Retrieved July 26, 2010, from: http://www.fmcsa.dot.gov/facts-research/research-technology/report/FMCSA-RRR-09-042.pdf.
---------------------------------------------------------------------------

    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed the study titled, ``Driver Distraction in 
Commercial Vehicle Operations,'' and released the final report on 
October 1, 2009. The purpose of the VTTI Study (2009) was to 
investigate the prevalence of driver distraction in CMV safety-critical 
events recorded in a naturalistic data set that included over 200 truck 
drivers and data from 3 million miles of operations. Of the 4,452 
safety-critical events noted in the combined data, 60 percent had some 
type of non-driving related task listed as a potential contributing 
factor. Safety-critical events are crashes, near-crashes, crash-
relevant conflicts, and unintentional lane deviations.

[[Page 80021]]

[GRAPHIC] [TIFF OMITTED] TP21DE10.067

    The VTTI Study (2009) separately examined the different sub-tasks 
associated with cell phone use. Although talking on the cell phone did 
not show an increased risk, as seen in Table 1, a driver must take 
several risk-increasing steps in order to use the electronic device for 
conversation. In particular, as also shown in Table 1, the use of a 
cell phone involves a variety of sub-tasks, including reaching for and 
holding the phone, performing the visually complex process of manually 
dialing the phone, and then carrying out the conversation. In FMCSA's 
view, the risk associated with cell phone use should be viewed as a 
series of related sub-tasks, not all having equal risk. The odds of 
being involved in a safety-critical event are three times greater while 
the driver is reaching for an object than when the driver is not 
reaching for an object. The odds of being involved in a safety- 
critical event are six times greater while the driver is dialing a cell 
phone than when the driver is not dialing a cell phone. But, according 
to the VTTI study, the odds of being involved in a safety critical 
event while talking or listening to a hand-held or hands-free phone do 
not show an increased risk.
    In addition, the population attributable risk (PAR) incorporates 
the frequency of engaging in a non-driving related task by the 
population of drivers. If a task is done more frequently by a large 
population of drivers, it will have a greater PAR percentage. High PAR 
percentages occurred for commonly performed tasks (i.e., a task, which 
if removed, would increase safety most). The PAR percentage for 
reaching for an object was the highest in the study at 7.6 percent. In 
other words, there would be 7.6 percent fewer safety- critical events, 
if reaching for an object while driving never occurred. The risk of 
being involved in a safety-critical event was greater for other 
distracting activities, but the prevalence of the distractions was 
greatest for reaching for an object. In contrast, the PAR for talking 
on a hand-held phone was relatively low, at 0.2 percent, and the PAR 
was not calculated for talking on a hands-free cell phone.
    FMCSA constructed a diagram that shows the relationship between the 
odds ratios of various activities conducted while driving and their 
associated eyes-off-roadway times. As seen in Diagram 1 (constructed 
from data in the VTTI study), those tasks that drew the driver's eyes 
away from the forward road led to a significant increase in risk. For 
example, texting, dialing, using other electronic devices, reading a 
map or grooming stand out as risky tasks.

[[Page 80022]]

[GRAPHIC] [TIFF OMITTED] TP21DE10.068

    During the 3.8 seconds the driver has his eyes off the forward 
roadway while dialing his mobile telephone, at 55 miles per hour, the 
CMV travels about the length of a football field, 306 feet.
    A complete copy of the final report for the VTTI Study (2009) is 
included in the docket referenced in the beginning of this rulemaking 
notice.
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction With Crashes and Near-Crashes\28\
---------------------------------------------------------------------------

    \28\ Hickman, J., Hanowski, R., & Bocanegra, J. (2010). 
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: 
FMCSA.
---------------------------------------------------------------------------

    The purpose of this research was to conduct an analysis of 
naturalistic data collected by DriveCam[supreg]. The introduction of 
naturalistic driving studies that record drivers (through video and 
kinematic \29\ vehicle sensors) in actual driving situations created a 
scientific method to study driver behavior under the daily pressures of 
real-world driving conditions.
---------------------------------------------------------------------------

    \29\ Kinematics is a branch of physics that deals with the 
motion of a body or system without reference to force and mass.
---------------------------------------------------------------------------

    The research documented the prevalence of distractions while 
driving a CMV, including both trucks and buses, using an existing 
naturalistic data set. This data set came from 183 truck and bus fleets 
comprising a total of 13,306 vehicles captured during a 90-day period. 
There were 8,509 buses and 4,797 trucks. The data sets in the current 
study did not include continuous data; they only included recorded 
events that met or exceeded a kinematic threshold (a minimum g-force 
setting that triggers the event recorder). These recorded events 
included safety-critical events (e.g., hard braking in response to 
another vehicle) and baseline events (i.e., an event that was not 
related to a safety-critical event, such as a vehicle that traveled 
over train tracks and exceeded the kinematic threshold). A total of 
1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant conflicts, and 
211,171 baselines were captured in the data set.
    Odds ratios were calculated to show a measure of association 
between involvement in a safety-critical event, which includes crashes, 
and performing a non-driving related task. The odds ratios show the 
odds of being involved in a safety critical event when a non-driving 
related task is present compared

[[Page 80023]]

to when there is no non-driving related task. The non-driving related 
task, ``any cell phone usage,'' includes all the specific cell phone 
sub-tasks, such as reaching for, dialing, talking or listening to a 
hand-held or hands-free cell phone.
    Drivers increased their odds of involvement in a safety-critical 
event by 1.14 times for ``any cell phone usage'' while driving. 
However, when the cell phone task was disaggregated into sub-tasks, the 
study results show that the sub-tasks involved with using a cell phone 
have different risks, some increasing and some decreasing the odds of 
involvement in a safety-critical event. The odds of involvement in a 
safety critical event increased significantly when truck and bus 
drivers performed certain non-driving related tasks:
     Reaching for a cell phone while driving increased the odds 
by 3.7 times;
     Dialing a cell phone while driving increased the odds by 
3.5 times;
     Reaching for a headset/earpiece increased the odds by 3.4 
times.

Drivers decreased the odds of being involved in a safety-critical event 
by .65 times while talking or listening on a hands-free cell phone. 
However, the odds ratio for talking/listening should not ignore the 
fact that a person usually has to reach for and dial a cell phone in 
order to talk or listen. Both consuming food/drink and talking/
listening on a hand-held cell phone (odds ratios = 1.11 and 0.89, 
respectively) had non-significant odds ratios (i.e., no increase or 
decrease in risk).
The Impact of Cognitive Distraction on Driver Visual Behavior and 
Vehicle Control
    While conclusive evidence is still lacking, several studies focused 
on cognitive distraction and its influence on driver performance. 
Harbluk, Noy, and Eizenman (2002) examined the impact of cognitive 
distraction on drivers' visual behavior and vehicle control.\30\ This 
instrumented-vehicle study examined changes in drivers' visual scanning 
driving patterns under three tasks varying in cognitive complexity: no 
distraction, an easy cognitive task (i.e., simple addition), and a 
difficult cognitive task (i.e., difficult addition). As predicted, 
drivers had significantly increased hard-braking events under 
distracted driving conditions. Interestingly, under distracted driving 
conditions, drivers made fewer eye movements, spent more time focusing 
on the central visual field, and spent less time scanning the right 
periphery. This suggests that visual scanning collapses to a minimal 
level under distracted driving conditions, increasing the risk that a 
driver will miss a critical event.
---------------------------------------------------------------------------

    \30\ Harbluk, J. L., Noy, Y. I., & Eizenman, M. (2002). The 
Impact of Cognitive Distraction on Driver Visual Behavior and 
Vehicle Control (Report No. TP 13889E). Ottawa: Transport Canada. 
Retrieved July 26, 2010, from: http://people.usd.edu/~schieber/
materials/trans-canada-13889.pdf.
---------------------------------------------------------------------------

A Decrease in Brain Activation Associated With Driving When Listening 
to Someone Speak
    Just, Keller, and Cynkar (2008) used functional magnetic resonance 
imaging (MRI) to investigate the impact of concurrent auditory language 
comprehension on the brain activity associated with a simulated driving 
task.\31\ Participants steered a vehicle along a curving virtual road, 
either undisturbed or while listening to spoken sentences that they 
judged as true or false. The study was designed to assess the neural 
effect of listening while driving, similar to listening to a cell phone 
while driving. The central findings were that the sentence listening 
task reliably degraded driving performance. The behavioral measures 
indicated reliably more road-maintenance errors and larger deviation 
from an ideal path in the driving with listening condition. The 
findings show that language comprehension performed concurrently with 
driving draws mental resources away from the driving and produces 
deterioration in driving performance, even when it is not accompanied 
by holding or dialing a phone.
---------------------------------------------------------------------------

    \31\ Just, M.A., Keller, T.A., & Cynkar, J. (2008). A Decrease 
in Brain Activation Associated With Driving When Listening to 
Someone Speak. Brain Research. Retrieved July 26, 2010, from: http://www.distraction.gov/files/research/carnegie-mellon.pdf.
---------------------------------------------------------------------------

The Distraction Effects of Phone Use During a Crucial Driving Maneuver
    A study by Hancock, Lesch, and Simmons (2003) \32\ examined the 
effect of drivers on a test track responding to an in-vehicle phone at 
the same time they were faced with making a crucial stopping decision. 
The most crucial finding was the variation in stopping accuracy in the 
presence of the phone distraction task, from 95 percent accuracy 
without distraction to 80 percent with distraction, a significant 15 
percentage point reduction. The study shows there is a detrimental 
impact of a coincident in-vehicle phone task on a critical driving 
maneuver.
---------------------------------------------------------------------------

    \32\ Hancock, P. A., Lesch, M., & Simmons, L. (2003). The 
Distraction Effects of Phone Use During a Crucial Driving Maneuver. 
Accident Analysis and Prevention, 35(4), 501-514. Retrieved July 26, 
2010, from: http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6V5S-45SH77V-1-20&_cdi=5794&_user=3928936&_pii=S0001457502000283&_orig=search&_coverDate=07%2F31%2F2003&_sk=999649995&view=c&wchp=dGLzVtb-zSkWb&md5=b40e15505a9c7b04bd3c6aa3c42a5777&ie=/sdarticle.pdf.
---------------------------------------------------------------------------

Passenger and Cell Phone Conversations in Simulated Driving
    Drews, Pasupathi, and Strayer (2008) examined in a simulator study 
how conversing with passengers in a vehicle differs from conversing on 
a cell phone while driving.\33\ The results show that the number of 
driving errors was highest when the driver was conversing on a cell 
phone while driving. Passenger conversations made more references to 
traffic. In addition, drivers' speech production rate (measured in 
syllables per second) and the drivers' and passengers' speech 
complexity rate (measured in syllables per word of speech) dropped in 
response to an increase in the demand of the traffic. Overall, the 
study found that cell phone use negatively impacts lane keeping, 
increases the following distance, and leads to impairment of a 
navigation task, while passenger conversations have little effect on 
all of the three measures.
---------------------------------------------------------------------------

    \33\ Drews, F.A., Pasupathi, M., & Strayer, D.L. (2008). 
Passenger and Cell Phone Conversations in Simulated Driving. Journal 
of Experimental Psychology: Applied, 14(4). Retrieved July 26, 2010, 
from: http://www.psych.utah.edu/lab/appliedcognition/publications/passenger.pdf.
---------------------------------------------------------------------------

Request for Additional Research or Data
    Overall, these studies illustrate degradations in driver 
performance due to the effects of driver distraction. The studies do 
not necessarily break down the individual components of mobile 
telephone use like the VTTI study does. However, they suggest certain 
risks when using a mobile telephone. Commenters are encouraged to 
provide other research or data that would enable the Agency to better 
assess the risk associated with mobile telephone use by CMV drivers 
while operating their vehicles.

E. Existing Mobile Telephone Bans by Federal, State, and Local 
Governments

Federal
    On October 7, 2008, FRA published Emergency Order 26 (73 FR 58702). 
Pursuant to FRA's authority under 49 U.S.C. 20102 and 20103, the order, 
which took effect on October 27, 2008, restricts railroad operating 
employees from using distracting electronic and electrical devices 
while on duty. Among other things, the order prohibits both the use of 
mobile telephones and texting by railroad operating employees. FRA 
cited numerous examples of the adverse impact that electronic devices 
can have

[[Page 80024]]

on safe operations. These examples included fatal crashes that involved 
operators who were distracted while texting or talking on a mobile 
telephone. In light of these incidents, FRA proposed to amend its 
railroad communications regulations by restricting use of mobile 
telephones and other distracting electronic devices by railroad 
operating employees. FRA published its final rule in the Federal 
Register on September 27, 2010 (75 FR 59580).
    On September 27, 2010, FMCSA also published a final rule (75 FR 
59118) that prohibits texting on electronic devices, including mobile 
telephones, while driving a CMV. This rulemaking action addressed one 
of the riskiest distracted driving behaviors. Furthermore, on September 
27, 2010, the Pipeline and Hazardous Materials Safety Administration 
published a notice of proposed rulemaking (75 FR 59197) that addressed 
distracted activities by drivers under its authority.
States
    Nine States and the District of Columbia have traffic laws 
prohibiting all motor vehicle drivers from using a hand-held mobile 
telephone while driving. School bus drivers are currently prohibited 
from any mobile telephone use in 19 States and the District of 
Columbia. A list of these States can be found at the following Web 
site: http://www.iihs.org/laws/cellphonelaws.aspx. Generally, the 
State traffic laws are applicable to all drivers operating motor 
vehicles within those jurisdictions, including CMV operators. Some 
States are already tracking enforcement. For example, since March of 
2008, when New Jersey's wireless hand-held telephone and electronic 
communication device ban became effective, more than 224,000 
citations--an average of almost 10,000 a month-- were issued to 
motorists violating this cell phone law.
    Additionally, as part of its continuing effort to combat distracted 
driving, DOT kicked off pilot programs in Hartford, Connecticut, and 
Syracuse, New York, to test whether increased law enforcement efforts 
can get distracted drivers to put down their mobile telephones and 
focus on the road. During 1 week of the pilot program in Hartford, 
police cited more than 2,000 drivers for talking on mobile telephones 
and 200 more for texting while driving.
Public Transportation Agencies
    The severity of the problem of distracted driving led public 
transportation agencies to ban the use of mobile telephones/electronic 
devices while an operator is driving a vehicle in passenger service. In 
the period from May 2008 to May 2009, after the Massachusetts Bay 
Transportation Authority (MBTA) issued its cell phone ban, 12 bus 
drivers employed by the MBTA were suspended and one bus driver was 
fired for using a cell phone while on duty.
    Most transit agencies allow operators to carry cell phones or other 
electronic devices in backpacks, purses, or bags, and to use them 
outside the vehicle during breaks and layovers and during emergencies. 
However, many large transit agencies prohibit operators from carrying 
cell phones or other electronic devices in the cab. Examples of 
policies at public transportation agencies include the following:

     MBTA. The MBTA banned cell phone use by drivers while 
on the job, with penalties escalating from a 3-day suspension after 
one offense, to a 10-day suspension after two, and dismissal for the 
third offense. Engineers on commuter-rail trains operated by a 
private contractor are also prohibited from having a cell phone or 
other device on their person.\34\
---------------------------------------------------------------------------

    \34\ Massachusetts Bay Transportation Authority (June 7, 2009). 
Cell Phone Ban Expanded. Retrieved July 26, 2010, from the MBTA Web 
site: http://www.mbta.com/about_the_mbta/news_events/?id=17461&month=&year=.
---------------------------------------------------------------------------

     Chicago Transit Authority (CTA). The CTA's zero 
tolerance policy prohibits employee use of electronic devices while 
operating buses and trains. This policy prohibits the use of cell 
phones, smart phones, personal digital assistants (PDAs), MP3/music 
players, wireless headsets, or any other appliance or device. Having 
possession of an electronic device results in probation and a 3-day 
suspension. Use of the device while on duty may lead to 
discharge.\35\
---------------------------------------------------------------------------

    \35\ Chicago Transit Authority (August 5, 2009). CTA Adopts Zero 
Tolerance Policy on Employee Use of Electronic Devices While On-
Duty. Retrieved July 26, 2010, from the CTA Web site: http://www.transitchicago.com/news/default.aspx?Archive=y&ArticleId=2427.
---------------------------------------------------------------------------

     Greater Cleveland Regional Transit Authority (GCRTA). 
All employees are prohibited from having a cell phone on their 
person while operating a bus or train at the GCRTA. The prohibition 
includes: Cell phones; smart phones; PDAs, electronic music devices; 
wireless headsets; or any other electronic communication or 
listening devices. While on duty, operators must keep cell phones 
and other devices separate from their person. They may be stored on-
board in personal bags or purses. Cell phones may only be used when 
the operator is on layover, the vehicle is stopped, the parking 
brake is set, and he/she has left the driver's seat. Employees will 
be terminated for a first offense.\36\

    \36\ Greater Cleveland Regional Transit Authority (September 18, 
2009) RTA Strengthens Cell Phone Policy. Retrieved July 26, 2010, 
from the GCRTA Web site: http://www.riderta.com/nu_newsroom_releases.asp?listingid=1345.
---------------------------------------------------------------------------

    While FMCSA is aware that many organizations have policies on 
mobile telephone use, FMCSA solicits further comments on mobile 
telephone use policy and enforcement and on the applicability of State 
laws and local ordinances to school bus drivers and transit employees.

IV. Discussion of Proposed Rule

Federal Restriction of Mobile Telephone Use by Interstate CMV Drivers

    In light of the available studies, and to partially address the 
NTSB and MCSAC recommendations, the Agency proposes a restriction on 
the use of hand-held mobile telephones by CMV drivers operating in 
interstate commerce. This rulemaking would prohibit a CMV driver from 
reaching for, holding, and 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. The 
proposed rule would include definitions related to the restriction. It 
also would add a driver disqualification provision for interstate CMV 
drivers. A driver disqualification provision would also be included for 
CDL holders convicted of two or more violations of State or local 
traffic laws or ordinances on motor vehicle traffic control concerning 
hand-held mobile telephone use.
    This NPRM would amend regulations in 49 CFR parts 383 and 384 
concerning the Agency's CDL regulations, part 390 concerning general 
applicability of the FMCSRs, part 391 concerning driver qualifications 
and disqualifications, and part 392 concerning driving rules. In 
general, the proposed requirements are intended to reduce the risks of 
distracted driving by restricting hand-held mobile telephone use by a 
driver who is operating a CMV in interstate commerce.
    For CMV drivers operating in interstate commerce, the proposed rule 
would: (1) Restrict the use of hand-held mobile telephones; and (2) 
provide sanctions for those drivers convicted of using a hand-held 
mobile telephone while operating a CMV in interstate commerce, 
including civil penalties and/or disqualification from driving a CMV 
for a specified period of time. In addition, the proposed rule would 
provide sanctions for CDL holders convicted of violating a State or 
local law or ordinance on motor vehicle traffic control restricting the 
use of a hand-held mobile telephone while operating any CMV-- 
specifically, a

[[Page 80025]]

disqualification for a specified period of time from operating any CMV 
requiring a CDL.
    The proposed rule would also require interstate motor carriers to 
ensure compliance by their drivers with the restrictions on use of a 
hand-held mobile telephone while driving a CMV. Motor carriers would be 
prohibited from requiring or allowing drivers of CMVs to use a hand-
held mobile telephone while operating in interstate commerce.
    As indicated above, FMCSA proposes that any CDL holder operating a 
CMV (as defined in Sec.  383.5) who is convicted of violating a State 
or local traffic law or ordinance on motor vehicle traffic control 
restricting or prohibiting hand-held mobile telephone use while driving 
a CMV would be disqualified for 60 days after a second conviction and 
120 days after a third or subsequent conviction within a 3-year 
period.\37\ State or local laws or ordinances restricting or 
prohibiting hand-held mobile telephone use would be added to the list 
of ``serious'' traffic offenses under Sec.  383.51(c). The 
disqualifying serious traffic offense would be applicable to all 
persons who are required to possess a CDL, in accordance with the 
requirements of 49 CFR part 383, and who are subject to a State or 
local law or ordinance restricting or prohibiting hand-held mobile 
telephone use while driving. Therefore, the amendment to the CDL rules 
would be applicable to CMV drivers employed by Federal, State, or local 
government agencies, transit authorities, and school districts.
---------------------------------------------------------------------------

    \37\ Although the statute (in 49 U.S.C. 31310(e)) authorizes 
disqualifications of ``at least'' 60 or 120 days, the proposed rule 
follows the existing structure in the FMCSRs and provides for 
disqualifications of exactly 60 or 120 days.
---------------------------------------------------------------------------

Other Technologies

    It is not FMCSA's intention to limit current or future innovative 
technologies that could allow safe and effective, completely hands-
free, voice communication. Because of the lack of information about the 
availability of completely hands-free technology for CMV drivers' work 
environment, FMCSA is unable to analyze their safety and economic or 
environmental impacts. The Agency is proposing to allow hands-free 
mobile telephone use as long as it does not require the driver to reach 
for, dial, or hold a mobile telephone, taking the driver's eyes off the 
forward roadway and a hand off the wheel. We request comments on this 
rationale as well as whether true hands-free mobile telephones exist 
for use in the CMV operating environment, whether they are safe to use 
while driving a CMV, or whether they should be banned as well. The 
Agency is also interested in receiving public comments and acquiring 
further knowledge about innovative technologies, either those that 
exist today or that are under development, including the practicability 
of their application and use in CMVs and their safety and economic or 
environmental impact. FMCSA notes that the use of Citizens Band (CB) 
radios is not restricted in this proposed rule. CB radios are not 
included in this proposed rule because they do not fall under the 
definition of ``commercial mobile radio services'' as defined by the 
FCC. The NPRM should not be construed as a proposal to restrict the use 
of mobile telephones by drivers when they are not driving.
    With significant national awareness now focused on the issue of 
distracted driving, the Agency hopes that important safety gains can be 
achieved as a result of this increased attention on the use of mobile 
telephones by drivers operating CMVs. Although fleet management systems 
and electronic dispatching tools are used by many of the Nation's 
largest CMV fleets, the Agency believes safety-conscious fleet managers 
would neither allow nor require their drivers operating CMVs to use 
these devices or hand-held mobile telephones while driving.

Applicability to Federal, State, or Local Government Employees

    FMCSA's proposed explicit restriction on using a hand-held mobile 
telephone while driving a CMV would apply to CMV drivers covered under 
49 CFR Part 392, but the requirements of Part 392 would not be 
applicable to Federal, State, or local government-employed drivers of 
CMVs in interstate commerce. Those drivers are statutorily exempt from 
nearly all of FMCSA's safety regulations. However, the Agency proposes 
to make amendments to its disqualifying offenses for such CDL drivers 
if they are convicted, while driving a CMV, of violating a State or 
local law or ordinance on motor vehicle traffic control that restricts 
or prohibits the use of hand-held mobile telephones while driving. The 
Agency's amendments to the CDL regulations would be applicable to 
Federal, State, or local government-employed drivers of CMVs who are 
required to possess a CDL.
    The proposed rule would also be applicable to transit employees 
employed by Federal, State, and local governments who are required to 
possess a CDL.

Section-by-Section Analysis

Section 390.3 \38\
---------------------------------------------------------------------------

    \38\ The proposed rules in this NPRM are numbered and placed in 
relation to the rules currently in effect and published in the Code 
of Federal Regulations (CFR). The Agency has issued an NPRM 
addressing texting while driving a CMV, which proposes similar 
definitions, and analogous prohibitions and disqualifications (75 FR 
16391, April 1, 2010). The numbering and placement of any final 
regulations that result from this rulemaking will be adjusted 
appropriately to reflect any final rules adopted in other 
rulemakings.
---------------------------------------------------------------------------

    The Agency proposes to modify several discretionary regulatory 
exemptions concerning the applicability of the existing FMCSRs, 
including one for school bus operations and one for CMVs designed or 
used to transport between 9 and 15 passengers (including the driver), 
not for direct compensation (49 CFR 390.3(f)(1) and (6)). The Agency 
finds that this action is necessary for public safety regarding school 
bus transportation by interstate motor carriers, a finding required by 
the applicable statutory provisions, as explained above in the legal 
authority section. In addition, the Agency determined that in order to 
enhance public safety to the greatest extent possible, the rule should 
apply to the operation by drivers of small-passenger carrying vehicles 
(designed to transport 9-15 passengers) who are not receiving direct 
compensation, which are otherwise exempt from most of the FMCSRs under 
49 CFR 390.3(f)(6).
Section 390.5
    The Agency proposes to amend 49 CFR 390.5 by adding new definitions 
for the terms ``mobile telephone'' and ``using a hand-held mobile 
telephone,'' for general application. A broad definition of the term 
mobile telephone is proposed because of the wide variety of radio 
telephone services, in addition to cell phone services, that are 
licensed by the Federal Communications Commission (FCC) and might be 
available for use in a CMV. ``Mobile telephone'' could include, for 
example, a satellite telephone service, a broadband radio service, or a 
personal communications system. Using such wireless communication 
services is just as distracting to a CMV driver as using a cell phone. 
The FCC classifies these services as ``commercial mobile radio 
services,'' which are incorporated into the definition of mobile 
telephone. It does not include two-way or Citizens Band radio.
    In this rulemaking, FMCSA proposes to define ``using a hand-held 
mobile telephone'' to clarify that certain uses of a hand-held mobile 
telephone are restricted, including reaching for,

[[Page 80026]]

dialing, and holding the mobile telephone to conduct voice 
communication. The Agency recognizes that mobile telephones often have 
multi-functional capability and is not prohibiting the use of mobile 
telephones for other uses. Of course, other types of activities using a 
mobile telephone might be covered by other rules proposed by FMCSA, 
such as those addressing texting while driving a CMV. To be consistent 
with these new definitions, FMCSA proposes removing exception (2)(i) 
from the existing definition of ``texting'' in this section.
Section 391.2
    FMCSA proposes to amend 49 CFR 391.2, which provides certain 
exceptions to the requirements of part 391 for custom farm operations, 
apiarian industries, and specific farm vehicle drivers, to enable the 
Agency to make violations of the Federal mobile telephone restriction a 
disqualifying offense for such drivers. While the proposed explicit 
Federal restriction against hand-held mobile telephone use applies 
directly to these drivers, the disqualification provision in proposed 
Sec.  391.15(f) below would not apply without this amendment to the 
current exceptions under 49 CFR 391.2.
Section 391.15
    FMCSA proposes to add a new paragraph (f) to 49 CFR 391.15 entitled 
``Disqualification for violation of restriction on using a hand-held 
mobile telephone while driving a commercial motor vehicle.'' \39\ This 
provision would provide for the disqualification from operating a CMV 
in interstate commerce of any driver convicted of two or more 
violations within a 3-year period of the new hand-held mobile telephone 
use restriction while operating a CMV as set forth in proposed Sec.  
392.82. For the driver's first hand-held mobile telephone use 
conviction, the Agency could assess a civil penalty against the driver. 
If a driver is convicted of committing a second hand-held mobile 
telephone use violation within 3 years, he or she would be disqualified 
for 60 days, in addition to being subject to the applicable civil 
penalty. For three or more hand-held mobile telephone use convictions 
for violations committed within 3 years, a driver would be disqualified 
for 120 days, in addition to being subject to the applicable civil 
penalty. This proposed change to the disqualifying offenses for 
interstate drivers would mirror the Agency's corresponding proposed new 
provisions governing the disqualification offenses for CDL drivers in 
Sec.  383.51(c). The required number of convictions to cause a 
disqualification by FMCSA and the period of disqualification would be 
the same: 60 days for the second offense within 3 years and 120 days 
for three or more offenses within 3 years. In addition, the first and 
each subsequent violation of such a restriction or prohibition by a 
driver would be subject to civil penalties imposed on such drivers, in 
an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and 
Appendix B, A(4)).
---------------------------------------------------------------------------

    \39\ The texting NPRM, cited above, proposed to add a new 
paragraph (e) to this section. Therefore, paragraph (e); is reserved 
in this NPRM for possible use by this Agency for another rulemaking.
---------------------------------------------------------------------------

Section 392.82
    In this section, the Agency proposes a new restriction on using a 
hand-held mobile telephone while driving a CMV. Furthermore, this 
proposed section states that motor carriers must not allow or require 
CMV drivers to use a hand-held mobile telephone while driving. The 
Agency would also include a provision in this proposed section to apply 
this new hand-held mobile telephone restriction to ``school bus 
operations notwithstanding the general exception in 49 CFR 
390.3(f)(1).'' Thus, school bus drivers who are employed by non-
government entities and who transport school children and/or school 
personnel between home and school in interstate commerce would be 
subject to this proposed section. The Agency determined that this 
proposed section is necessary for public safety regarding school bus 
transportation by interstate motor carriers. In addition, the proposed 
rule would apply to the operation of CMVs designed or used to transport 
between 9 and 15 passengers (including the driver), not for direct 
compensation, notwithstanding the exception in 49 CFR 390.3(f)(6). The 
proposed section would also require employers to ensure compliance by 
their drivers with the restrictions on use of a hand-held mobile 
telephone while driving a CMV. Any violation by an employer would be 
subject to civil penalties in an amount up to $11,000 (49 U.S.C. 
521(b)(2)(A), 49 CFR 386.81 and part 386 Appendix B, paragraph (a)(3)).
    A definition of ``driving a commercial motor vehicle'' would be 
incorporated into the restriction on using a hand-held mobile telephone 
while driving, in the proposed new Sec.  392.82, in order to confine 
the use of that term to the restriction and the related 
disqualification and to avoid limiting the scope of the same term as 
used in other provisions of the FMCSRs.
    The Agency proposes to add a limited exception to the hand-held 
mobile telephone restriction to allow CMV drivers to use their hand-
held mobile telephones if necessary to communicate with law enforcement 
officials or other emergency services.

Federal Disqualification Standard for CDL Drivers

    Any CDL driver operating a CMV (as defined in Sec.  383.5) who is 
convicted of violating a State or local motor vehicle law or ordinance 
that prohibits or restricts the use of a hand-held mobile telephone 
while driving a CMV would be disqualified after his or her second 
conviction for the hand-held mobile telephone offense or any other 
serious traffic violation (as defined by Sec.  383.51(c)). The CDL 
disqualifying offense would be applicable to all persons who are 
required to possess a CDL, in accordance with the requirements of 49 
CFR part 383, and who are subject to a State or local law or ordinance 
prohibiting or restricting the use of a hand-held mobile telephone 
while driving, when the offense occurs during the operation of a CMV. 
Therefore, the amendment to the CDL rules is applicable to drivers 
employed by Federal, State, or local government agencies, transit 
authorities, and school districts. To assist in the application of the 
provisions for disqualification, the regulations include definitions of 
the words ``mobile telephone'' and ``using a hand-held mobile 
telephone.''
Section 383.5
    The Agency proposes to add new definitions for the terms ``mobile 
telephone'' and ``using a hand-held mobile telephone.'' The Agency 
proposes a broad definition of mobile telephones based on the FCC 
regulations to cover the multitude of devices that allow users to send 
or receive voice communication while driving. The definitions of 
``mobile telephone'' and ``using a hand-held mobile telephone'' would 
identify the type of activity that would be restricted by this proposed 
rule. To be consistent with these new definitions, FMCSA proposes 
removing exception (2)(i) from the definition of ``texting'' in this 
section.
Section 383.51
    In Table 2 of 49 CFR 383.51(c), FMCSA would add a new serious 
traffic violation that would result in a CDL driver being disqualified. 
This serious traffic violation would be a conviction for violating a 
State or local law or ordinance restricting hand-held mobile telephone 
use while driving a CMV. For the purpose of this disqualification, the 
Agency proposes to use the same description of ``driving'' that is 
already

[[Page 80027]]

in the table for the texting disqualification (Sec.  383.51(c)(9)). 
FMCSA notes that the conviction must involve ``using a hand-held mobile 
telephone'' while operating a CMV and excludes convictions for hand-
held mobile telephone use by a CDL driver while operating a vehicle for 
which such a CDL is not required. The Agency's decision is consistent 
with the provisions of 49 U.S.C. 31310(e), which indicates the serious 
traffic violation must occur while the driver is operating a CMV that 
requires a CDL; the operative provisions in the revised table would 
limit the types of violations that could result in a disqualification 
accordingly.
    As proposed, every State that issues CDLs would be required to 
impose this disqualification on a driver required to have a CDL issued 
by that State whenever that CDL driver was convicted of the necessary 
number of violations while operating in States where such conduct is 
restricted or prohibited by a State or local traffic law.
Section 384.301
    A new paragraph (f) is proposed to be added to Sec.  384.301. It 
would require all States that issue CDLs to implement the new 
provisions proposed in part 383 that relate to disqualifying CDL 
drivers for violating the new serious traffic violation of using a 
hand-held mobile telephone while driving a CMV as soon as practical, 
but not later than 3 years after this proposed rule is implemented.

Impact on States

Motor Carrier Safety Assistance Program (MCSAP)
    Under MCSAP, States that receive grant funds would be required, as 
a condition of receiving the grants, to adopt regulations on the hand-
held mobile telephone restriction that are compatible with final 
Federal regulations issued as a result of this rulemaking (49 U.S.C. 
31102(a) and 49 CFR 350.201(a)). If a restriction of hand-held mobile 
telephone use (such as proposed in Sec.  392.82) and the related 
disqualification (such as proposed in Sec.  391.15(f)) are adopted by 
FMCSA, States under MCSAP would need to adopt compatible regulations 
applicable to both interstate and intrastate transportation as soon as 
practicable, but not later than 3 years thereafter (49 CFR 350.331(d)). 
If States do not adopt compatible regulations restricting hand-held 
mobile telephone use while driving a CMV and related disqualifications, 
they may not receive full MCSAP grant funding.
CDL Program
    States that issue CDLs to CMV drivers would be required to adopt 
and implement the proposed CDL disqualification provisions that require 
disqualification for two or more convictions of violating a State or 
local law or ordinance restricting or prohibiting hand-held mobile 
telephone use while driving a CMV. States should be in compliance with 
this hand-held mobile telephone disqualification as soon as 
practicable, but not later than 3 years after the Agency adopts the 
disqualification provisions. If they do not comply with this provision, 
they may be subject to the loss of up to 5 percent in the first year of 
substantial non-compliance and up to 10 percent in subsequent years of 
certain Federal-aid highway amounts apportioned to the State (49 U.S.C. 
31311(a) and 31314).
Impact on Other State Laws--Preemption
    At present, only nine States and the District of Columbia restrict 
or prohibit hand-held mobile telephone use while driving a motor 
vehicle within their jurisdictions. FMCSA believes that there is a need 
for a Federal regulation to address the safety risks associated with 
hand-held mobile telephone use by CMV drivers nation-wide. The Federal 
restriction would provide uniform language applicable to CMV drivers 
engaged in interstate commerce, regardless of the presence or absence 
of a State law or regulation. State laws and regulations that are 
compatible with the Federal requirements we are proposing today, or 
that have a safety benefit or do not create an undue burden upon 
interstate commerce in conformity with 49 U.S.C. 31141 and 49 CFR 
350.333, would remain in effect and could continue to be enforced with 
regard to CMV drivers. Future actions by the States to institute new 
restrictions or prohibitions on any form of mobile telephone use while 
driving CMVs in interstate commerce would be governed by the same 
principles. For more information see the Federalism section later in 
this document.
    The States receiving MCSAP grants would be required, as a condition 
of receiving the grants, to adopt, at a minimum, regulations compatible 
with any adopted Federal restriction on use of a hand-held mobile 
telephone while driving CMVs in interstate commerce, in accordance with 
the requirements of 49 CFR 350.333.
Questions and Request for Comments
    In order to make an informed decision on all of these issues 
related to mobile telephone use, the Agency requests review and comment 
on some specific questions:
    1. Should the Agency completely restrict all mobile telephone use, 
both hand-held and hands-free, by CMV drivers while driving in 
interstate commerce?
    2. Should some CMV drivers, for example, drivers of passenger-
carrying vehicles or of vehicles carrying hazardous materials, be more 
restricted than other CMV drivers?
    3. Some motor vehicle design guidelines suggest limiting the time 
that a visual or a visual-manual task takes the driver's eyes off of 
the forward roadway when designing vehicle controls. Should the Agency 
define a time limit for CMV drivers' interaction with mobile telephones 
(either hand-held, hands-free, or both)?
    4. Should the Agency propose limiting the number of keystrokes or 
button pushes that a CMV driver is allowed within a certain time frame 
when using a mobile telephone (either hand-held, hands-free, or both)? 
Should dialing be defined as a specific number of keystrokes or button 
pushes such as at least seven keystrokes or button pushes?
    5. Are there technologies available or soon to be available that 
would allow completely hands-free mobile telephone operation by CMV 
drivers? Please provide any information on the availability and costs 
of such technologies. The Agency also requests comments regarding the 
amount of time and steps that are required by the driver to initiate 
and then conduct a hands-free mobile telephone conversation with such 
devices.
    6. The Agency has proposed a definition for ``use of a hand-held 
mobile telephone'' in the regulatory text. The Agency requests comments 
on this definition as well as the public's views on whether to include 
a description of allowable alternatives to ``use of a hand-held mobile 
telephone,'' such as hands-free technologies.
    7. FMCSA seeks comment on its assumptions on States' costs, any 
increase in enforcement costs to the States, or any other costs or 
increases borne by the States.

V. Regulatory Analyses

    FMCSA proposes to restrict the use of hand-held mobile telephones 
by drivers of CMVs while operating in interstate commerce.\40\ The 
Agency proposes new

[[Page 80028]]

driver disqualification sanctions for interstate drivers of CMVs who 
fail to comply with this Federal restriction and new driver 
disqualification sanctions for CDL holders who have multiple 
convictions for violating a State or local law or ordinance on motor 
vehicle traffic control that restricts the use of hand-held mobile 
telephones. Additionally, motor carriers operating CMVs would be 
prohibited from requiring or allowing drivers of CMVs to engage in the 
use of a hand-held mobile telephone while operating in interstate 
commerce. This rulemaking would improve health and safety on the 
Nation's highways by reducing the prevalence of distracted driving-
related crashes, fatalities, and injuries involving drivers of CMVs. In 
addition, the proposed rulemaking would reduce the financial and 
environmental burden associated with these crashes and promote the 
efficient movement of traffic and commerce on the Nation's highways.
---------------------------------------------------------------------------

    \40\ In popular usage, mobile telephones are often referred to 
as ``cell phones.'' As explained in the NPRM, however, a variety of 
different technologies are licensed by the Federal Communications 
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; 
thus, these proposed rules would apply to the range of technologies 
used to provide wireless telephone communications. But some of the 
materials and research studies discussed in this evaluation use the 
popular term ``cell phone,'' and the discussion continues that usage 
in such cases.
---------------------------------------------------------------------------

    Distraction-related crashes impose a substantial cost on society. 
Two studies estimate that mobile telephone related crashes are 
responsible for $43 billion in costs each year in the United 
States.\41\ Other studies, including two commissioned by the FMCSA, 
show that research findings are inconsistent regarding the risks 
associated with talking. But reaching for and dialing the device while 
driving is a risky activity.\42\ In the regulatory evaluation (in the 
docket for this proposed rule), FMCSA estimates the benefits and costs 
of implementing a restriction on the use of hand-held mobile telephones 
while driving a CMV.
---------------------------------------------------------------------------

    \41\ Cohen, J.T. and Graham, J.D., A revised economic analysis 
of restrictions on the use of cell phones while driving, Risk 
Analysis 23(1) 1-14, 2003.
    \42\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, 
J. (2009) Driver distraction in commercial vehicle operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration, July 2009. Retrieved October 20, 
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010). 
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: 
Federal Motor Carrier Safety Administration.
---------------------------------------------------------------------------

    The Agency considered four regulatory options: (1) No action, (2) a 
restriction on the use of all mobile telephones while operating a CMV 
for all interstate CMV drivers, (3) a restriction on the use of all 
mobile telephones while operating a passenger-carrying CMV for all 
interstate drivers, and (4) a restriction on the use of hand-held 
mobile telephones by all interstate CMV drivers, which is the preferred 
option in this proposed rule. The first option serves as a baseline for 
this analysis. For the second option, the Agency conducted a cost-
benefit analysis and estimates that this option would potentially lead 
to an annual net benefit of $4 million (Table 2(b)).
    Because specific data that would allow the Agency to quantify 
benefits are unavailable, for the third and fourth options the Agency 
conducted threshold analyses. Analysis predicts that the third option 
would lead to an estimated annual cost of approximately $6.4 million. 
Current guidance from DOT's Office of the Secretary places the value of 
a statistical life at $6.0 million (Table 2(c)). Consequently, this 
option would have to eliminate any combination of crash types 
equivalent in cost to approximately one fatality in order for the 
benefits of this proposed rule to equal the costs. The analysis further 
predicts that the preferred fourth option would lead to an estimated 1-
year cost of $12.1 million (Table 2(a)). Consequently, this option 
would have to eliminate any combination of crash types equivalent to 
two fatalities per year in order for the benefits of this proposed rule 
to equal the costs. These results are summarized below in Table 2.

 Table 2(a)--Threshold Analysis Results--Option Four (Preferred Option)
------------------------------------------------------------------------
                                                     Annual break-even
                                  Total estimated   number of fatalities
                                  annual costs *        prevented **
------------------------------------------------------------------------
Option Four--Restriction on Use  $12.1 Million     Approximately 2
 of Hand-Held Mobile              ***.              Fatalities.
 Telephones--All CMV Drivers.
------------------------------------------------------------------------


  Table 2(b)--Cost-Benefit Analysis Results--Option Two (Restriction on
             Use of All Mobile Telephones--All CMV Drivers)
------------------------------------------------------------------------
                                   Estimated annual    Estimated annual
    Estimated annual benefit             cost             net benefit
------------------------------------------------------------------------
$84 Million.....................  $80 Million.......  $4 Million.
------------------------------------------------------------------------


          Table 2(c)--Threshold Analysis Results--Option Three
------------------------------------------------------------------------
                                                     Annual break-even
                                  Total estimated   number of fatalities
                                  annual costs *        prevented **
------------------------------------------------------------------------
Option Three--Restriction on     $6.4 Million....  Approximately 1
 Use of All Mobile Telephones--                     Fatality.
 All Passenger-Carrying CMV
 Drivers.
------------------------------------------------------------------------
* This cost estimate does not include a one-time cost to the States of
  $2.2 million.
** A statistical life is valued at $6 million.
*** This is a worst case annual cost as it would apply only if 100% of
  CMV drivers were theoretically replaced every year.

Because FMCSA is addressing two of the risky activities cited in the 
VTTI study, the Agency expects the proposed rule would prevent more 
than two fatalities and that the benefits justify the cost.

    The regulatory evaluation also finds the potential costs to the 
States and private entities do not require further

[[Page 80029]]

analysis pursuant to the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) because they are less than $140.8 million per year. I also 
certify, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), that the proposed rule will not have a significant economic 
impact on a substantial number of small entities because the average 
cost to carriers subject to the preferred option would be approximately 
$24.50.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this rulemaking action is a 
significant regulatory action under Executive Order 12866, Regulatory 
Planning and Review, and that it is significant under DOT regulatory 
policies and procedures because of the substantial Congressional and 
public interest concerning the crash risks associated with distracted 
driving. However, the estimated economic costs of the preferred option 
of the proposed rule do not exceed the $100 million annual threshold.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
Federal agencies to consider the effects of the regulatory action on 
small business and other small entities and to minimize any significant 
economic impact. The term ``small entities'' comprises small businesses 
and not-for-profit organizations that are independently owned and 
operated and are not dominant in their fields and governmental 
jurisdictions with populations of less than 50,000. Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities, and mandates that agencies strive to lessen any adverse 
effects on these businesses.
    Carriers are not required to report revenue to the Agency, but are 
required to provide the Agency with the number of power units (PU) they 
operate, when they register with the Agency, and to update this figure 
biennially. Because FMCSA does not have direct revenue figures, PUs 
serve as a proxy to determine the carrier size that would qualify as a 
small business given the SBA's revenue threshold. In order to produce 
this estimate, it is necessary to determine the average revenue 
generated by a PU.
    With regard to truck PUs, the Agency determined in the 2003 Hours 
of Service Rulemaking RIA \43\ that a PU produces about $172,000 in 
revenue annually (adjusted for inflation).\44\ According to the SBA, 
motor carriers with annual revenue of $25.5 million are considered 
small businesses.\45\ This equates to 148 PUs (25,500,000/172,000). 
Thus, FMCSA considers motor carriers of property with 148 PUs or fewer 
to be small businesses for purposes of this analysis. The Agency then 
looked at the number and percentage of property carriers with recent 
activity that would fall under that definition (of having 148 PUs or 
fewer). The results show that at least 99 percent of all interstate 
property carriers with recent activity have 148 PUs or fewer.\46\ This 
amounts to 481,788 carriers. Therefore, the overwhelming majority of 
interstate carriers of property would be considered small entities.
---------------------------------------------------------------------------

    \43\ FMCSA Regulatory Analysis, ``Hours of Service of Drivers; 
Driver Rest and Sleep for Safe Operations,'' Final Rule (68 FR 
22456, April 23, 2003).
    \44\ The 2000 TTS Blue Book of Trucking Companies, number 
adjusted to 2008 dollars for inflation.
    \45\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
(NAIC) System codes, effective August 22, 2008. See NAIC subsector 
484, Truck Transportation.
    \46\ MCMIS, as of June 17, 2010.
---------------------------------------------------------------------------

    With regard to passenger carriers, the Agency conducted a 
preliminary analysis to estimate the average number of PUs for a small 
entity earning $7 million annually, based on an assumption that a 
passenger-carrying PU generates annual revenues of $150,000. This 
estimate compares reasonably to the estimated average annual revenue 
per PU for the trucking industry ($172,000). The Agency used a lower 
estimate because passenger carriers generally do not accumulate as many 
VMT per PU as carriers of property; \47\ and it is assumed, therefore, 
that they would generate less revenue on average. The analysis 
concluded that passenger carriers with 47 PUs or fewer ($7,000,000 
divided by $150,000/PU = 46.7 PU) would be considered small entities. 
The Agency then looked at the number and percentage of passenger 
carriers registered with FMCSA that would fall under that definition 
(of having 47 PUs or fewer). The results show that at least 96 percent 
of all interstate passenger carriers with recent activity have 47 PUs 
or fewer.\48\ This amounts to 11,338 carriers. Therefore, the 
overwhelming majority of interstate passenger carriers would be 
considered small entities.
---------------------------------------------------------------------------

    \47\ FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and 
20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008.
    \48\ MCMIS, as of June 17, 2010.
---------------------------------------------------------------------------

    In order to estimate the economic impact of the proposed rule on 
small entities, FMCSA computed a total annual cost per carrier for each 
industry segment. First, FMCSA allocated the total cost \49\ of the 
proposed rule in the first year among property and passenger carriers 
according to their respective shares of total carrier population.\50\ 
Interstate property carriers constitute 98 percent of the total of 
interstate carriers, whereas interstate passenger carriers constitute 2 
percent. The total annual cost of the proposed rule's preferred option 
($12,095,948) \51\ was thus weighted by 98 percent for property 
carriers leading to a total cost of $11,854,036, and by 2 percent for 
passenger carriers, leading to a total cost of $241,919. Next, FMCSA 
divided the two weighted costs by their respective number of small 
carriers, as described above, arriving at a cost-per-carrier for each 
segment: $11,854,029/481,788 = $24.60 for property carriers; and 
$241,919/11,338 = $21.33 for passenger carriers, for a weighted average 
of $24.50 per small entity.
---------------------------------------------------------------------------

    \49\ The total cost in this section does not include costs to 
the States.
    \50\ The actual cost burden may not necessarily be proportionate 
to the carrier segment's share in the industry. Absent information 
on this distribution, FMCSA applied the above assumption.
    \51\ Excluding costs to the States.
---------------------------------------------------------------------------

    While the preferred option of this proposed rule would clearly 
impact a substantial number of small entities, the Agency does not 
consider a weighted average cost of approximately $24.50 per entity per 
year to be economically significant in light of the estimated average 
annual revenue of $172,000.52 53 Accordingly, I certify that 
a regulatory flexibility analysis is not necessary.
---------------------------------------------------------------------------

    \52\ Regulatory Analysis for: Hours of Service of Drivers; 
Driver Rest and Sleep for Safe Operations, Final Rule--Federal Motor 
Carrier Safety Administration. 68 FR 22456--Published April 23, 
2003.
    \53\ The 2000 TTS Blue Book of Trucking Companies, number 
adjusted to 2008 dollars for inflation.
---------------------------------------------------------------------------

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking 
initiative. If the proposed rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section 
of the proposed rule. FMCSA will not retaliate against small entities 
that question or complain about

[[Page 80030]]

this proposed rule or any policy or action of the Agency.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247).

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $140.8 million (which is the 
value of $100 million in 2009 after adjusting for inflation) or more in 
any 1 year. Though this proposed rule would not result in such 
expenditure, FMCSA discusses the effects of this rule elsewhere in this 
preamble.

Paperwork Reduction Act

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis for the proposed rule 
on restricting the use of hand-held mobile telephones by drivers of 
passenger-carrying CMVs and determined that it is not a privacy-
sensitive rulemaking because the rule would not require any collection, 
maintenance, or dissemination of Personally Identifiable Information 
from or about members of the public.

Executive Order 13132 (Federalism)

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments, on the relationship between the national government and 
the States, or on the distribution of powers and responsibilities among 
the various levels of government.
    FMCSA recognizes that, as a practical matter, this proposed rule 
may have some impact on the States. Accordingly, the Agency sought 
advice from the National Governors Association (NGA), National 
Conference of State Legislatures (NCSL), and the American Association 
of Motor Vehicle Administrators (AAMVA) on the topic of mobile 
telephone use, by letters to each organization, dated April 6, 2010. 
(Copies of these letters are available in the docket for this 
rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the 
opportunity to meet and discuss issues of concern to the States. As a 
result of these consultation efforts with State and local governments, 
they would also be able to raise Federalism issues during the comment 
period for this NPRM. For a further discussion, see the previous 
section in this NPRM entitled ``Impact on other State Laws--
Preemption.''

Executive Order 12630 (Taking of Private Property)

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an economically significant rule and 
would not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA preliminarily determined that it is not a 
``significant energy action'' under that order. Though it is 
nonetheless a potentially ``significant regulatory action'' under 
Executive Order 12866, it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. The Administrator 
of the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), has not designated it as a significant 
energy action. Therefore, it does not require a Statement of Energy 
Effects under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through OMB, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., specifications of materials, 
performance, design, or operation; test methods; sampling procedures; 
and related management systems practices) that are developed or adopted 
by voluntary consensus standards bodies.
    The Agency is not aware of any technical standards used to address 
mobile telephone use and therefore did not consider any such standards.

National Environmental Policy Act

    The Agency analyzed this NPRM for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily 
assessed that this proposed action requires an Environmental Assessment 
(EA) to determine if a more extensive Environmental Impact Statement 
(EIS) is required. In the event that FMCSA finds the environmental 
impacts do not warrant an EIS, FMCSA will issue a Finding of No 
Significant Impact (FONSI). The findings in the draft EA indicate there 
are no significant positive or negative impacts to the environment 
expected from the various options in the proposed rule. There could be 
minor impacts on emissions, hazardous materials spills, solid waste, 
socioeconomics, and public health and safety. FMCSA requests comments 
on the draft EA.
    FMCSA also analyzed this proposed rule under the Clean Air Act, as 
amended (CAA), section 176(c), (42 U.S.C. 7401 et seq.) and 
implementing regulations promulgated by the Environmental Protection 
Agency. Approval of this proposed action is exempt from the CAA's 
general conformity requirement since it would not result in any 
potential increase in emissions that are above the general conformity 
rule's de minimis emission threshold levels (40 CFR 93.153(c)(2)). 
Moreover, based on our analysis, it is reasonably foreseeable that the 
proposed

[[Page 80031]]

rule would not significantly increase total CMV mileage, nor would it 
significantly change the routing of CMVs, how CMVs operate, or the CMV 
fleet-mix of motor carriers. The proposed action merely would establish 
requirements to restrict hand-held mobile telephone use while driving 
CMVs.
    FMCSA seeks comment on these preliminary determinations.

List of Subjects

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor 
carriers, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 392

    Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    For the reasons discussed in the preamble, FMCSA proposes to amend 
49 CFR parts 383, 384, 390, 391, and 392 as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

    1. The authority citation for part 383 continues to read as 
follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b) 
of Pub. L. 107-56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119 
Stat. 1144, 1726; and 49 CFR 1.73.

    2. Amend Sec.  383.5 by adding the definitions ''mobile telephone'' 
and ``using a hand-held mobile telephone'' in alphabetical order and 
revising the definition of ``texting'' to read as follows:


Sec.  383.5  Definitions.

* * * * *
    Mobile telephone means a mobile communication device that falls 
under or uses any commercial mobile radio service, as defined in 
regulations of the Federal Communications Commission, 47 CFR 20.3. It 
does not include two-way or Citizens Band Radio services.
* * * * *
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, e-mailing, instant messaging, a command or request to access a 
World Wide Web page, or engaging in any other form of electronic text 
retrieval or entry, for present or future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global 
positioning system or navigation system; or
    (ii) Using a device capable of performing multiple functions (e.g., 
fleet management systems, dispatching devices, smart phones, citizens 
band radios, music players, etc.) for a purpose that is not otherwise 
prohibited in this part.
* * * * *
    Using a hand-held mobile telephone means using at least one hand to 
hold a mobile telephone to conduct a voice communication or to reach 
for or dial a mobile telephone.
* * * * *
    3. Amend Sec.  383.51 by adding a new paragraph (c)(10) to Table 2 
to read as follows:


Sec.  383.51  Disqualifications of drivers.

* * * * *
    (c) * * *
---------------------------------------------------------------------------

    \2\ Driving, for the purpose of this disqualification, means 
operating a commercial motor vehicle, with the motor running, 
including while temporarily stationary because of traffic, a traffic 
control device, or other momentary delays. Driving does not include 
operating a commercial motor vehicle with or without the motor 
running when the driver has moved the vehicle to the side of, or 
off, a highway, as defined in 49 CFR 390.5, and has halted in a 
location where the vehicle can safely remain stationary.

                                            Table 2 to Sec.   383.51
----------------------------------------------------------------------------------------------------------------
                                                                                                For a third or
                                                         For a second                             subsequent
                                                       conviction of any                       conviction of any
                                                        combination of                          combination of
                                                       offenses in this     For a third or     offenses in this
                                     For a second         Table in a          subsequent          Table in a
                                   conviction of any   separate incident   conviction of any   separate incident
                                    combination of      within a 3-year     combination of      within a 3-year
                                   offenses in this      period while      offenses in this      period while
                                      Table in a       operating a non-       Table in a       operating a non-
                                   separate incident   CMV, a CDL holder   separate incident   CMV, a CDL holder
 If the driver operates a motor     within a 3-year         must be         within a 3-year         must be
  vehicle and is convicted of:       period while      disqualified from     period while      disqualified from
                                  operating a CMV, a   operating a CMV,   operating a CMV, a   operating a CMV,
                                  person required to   if the conviction  person required to   if the conviction
                                   have a CDL and a     results in the     have a CDL and a     results in the
                                  CDL holder must be      revocation,     CDL holder must be      revocation,
                                   disqualified from   cancellation, or    disqualified from   cancellation, or
                                    operating a CMV    suspension of the    operating a CMV    suspension of the
                                       for . . .         CDL holder's          for . . .         CDL holder's
                                                      license or non-CMV                      license or non-CMV
                                                            driving                                 driving
                                                       privileges, for .                       privileges, for .
                                                              . .                                     . .
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(10) Violating a State or local   60 days...........  Not applicable....  120 days..........  Not applicable.
 law or ordinance on motor
 vehicle traffic control
 restricting or prohibiting the
 use of a hand-held mobile
 telephone while driving a
 CMV.\2\
----------------------------------------------------------------------------------------------------------------


[[Page 80032]]

* * * * *

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

    4. The authority citation for part 384 continues to read as 
follows:

    Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103 
and 215 of Pub. L. 106-159, 113 Stat. 1753, 1767; and 49 CFR 1.73.

    5. Amend Sec.  384.301 by adding a new paragraph (f) to read as 
follows:


Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (f) A State must come into substantial compliance with the 
requirements of subpart B of this part in effect as of [INSERT 
EFFECTIVE DATE] as soon as practical, but not later than [INSERT DATE 3 
YEARS AFTER THE EFFECTIVE DATE].

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    6. The authority citation for part 390 continues to read as 
follows:

    Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31144, 
31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 
(49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1767, 1773; 
and 49 CFR 1.73.

    7. Amend Sec.  390.3 by revising paragraphs (f)(1) and (f)(6) to 
read as follows: Sec.  390.3 General applicability.
* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5, except for 
the provisions of Sec. Sec.  391.15(f), 392.80 and 392.82 of this 
chapter.
* * * * *
    (6) The operation of commercial motor vehicles designed or used to 
transport between 9 and 15 passengers (including the driver), not for 
direct compensation, provided the vehicle does not otherwise meet the 
definition of a commercial motor vehicle, except that motor carriers 
and drivers operating such vehicles are required to comply with 
Sec. Sec.  390.15, 390.19, 390.21(a) and (b)(2), 391.15(f), 392.80 and 
392.82.
* * * * *
    8. Amend Sec.  390.5 by adding the definitions ''mobile telephone'' 
and ``using a hand-held mobile telephone'' in alphabetical order and 
revising the definition of ``texting'' to read as follows:.


Sec.  390.5  Definitions.

* * * * *
    Mobile telephone means a mobile communication device that falls 
under or uses any commercial mobile radio service, as defined in 
regulations of the Federal Communications Commission, 47 CFR 20.3. It 
does not include two-way or Citizens Band Radio services.
* * * * *
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, e-mailing, instant messaging, a command or request to access a 
World Wide Web page, or engaging in any other form of electronic text 
retrieval or entry, for present or future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global 
positioning system or navigation system; or
    (ii) Using a device capable of performing multiple functions (e.g., 
fleet management systems, dispatching devices, smart phones, citizens 
band radios, music players, etc.) for a purpose that is not otherwise 
prohibited in this part.
* * * * *
    Using a hand-held mobile telephone means using at least one hand to 
hold a mobile telephone to conduct a voice communication or to reach 
for or dial a mobile telephone.

PART 391--QUALIFICATION OF DRIVERS AND LONGER COMBINATION VEHICLE 
(LCV) DRIVER INSTRUCTIONS

    9. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502; 
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L. 
103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 
Stat. 1767; and 49 CFR 1.73.

    10. Revise Sec.  391.2 to read as follows:


Sec.  391.2  General exceptions.

    (a) Farm custom operation. The rules in this part, except for Sec.  
391.15 (e) and (f), do not apply to a driver who drives a commercial 
motor vehicle controlled and operated by a person engaged in custom-
harvesting operations, if the commercial motor vehicle is used to--
    (1) Transport farm machinery, supplies, or both, to or from a farm 
for custom-harvesting operations on a farm; or
    (2) Transport custom-harvested crops to storage or market.
    (b) Apiarian industries. The rules in this part, except for Sec.  
391.15 (e) and (f), do not apply to a driver who is operating a 
commercial motor vehicle controlled and operated by a beekeeper engaged 
in the seasonal transportation of bees.
    (c) Certain farm vehicle drivers. The rules in this part, except 
for Sec.  391.15 (e) and (f), do not apply to a farm vehicle driver 
except a farm vehicle driver who drives an articulated (combination) 
commercial motor vehicle, as defined in Sec.  390.5. For limited 
exemptions for farm vehicle drivers of articulated commercial motor 
vehicles, see Sec.  391.67.
    11. Amend Sec.  391.15 by adding a new paragraph (f) to read as 
follows:


Sec.  391.15  Disqualification of drivers.

* * * * *
    (f) Disqualification for violation of a restriction on using a 
hand-held mobile telephone while driving a commercial motor vehicle--
    (1) General rule. A driver who is convicted of violating the 
restriction on using a hand-held mobile telephone in Sec.  392.82(a) of 
this chapter is disqualified from driving a commercial motor vehicle 
for the period of time specified in paragraph (f)(2) of this section.
    (2) Duration. Disqualification for violation of a restriction on 
using a hand-held mobile telephone while driving a commercial motor 
vehicle--
    (i) Second violation. A driver is disqualified for 60 days if the 
driver is convicted of two violations of Sec.  392.82(a) of this 
chapter in separate incidents committed during any 3-year period.
    (ii) Third or subsequent violation. A driver is disqualified for 
120 days if the driver is convicted of three or more violations of 
Sec.  392.82(a) of this chapter in separate incidents committed during 
any 3-year period.

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

    12. The authority citation for part 392 continues to read as 
follows:

    Authority:  49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR 
1.73.

    13. Add a new Sec.  392.82 to subpart H to read as follows:


Sec.  392.82  Restriction on using a hand-held mobile telephone.

    (a) Restriction. (1) Drivers. No driver shall use a hand-held 
mobile telephone mobile while driving a CMV.
    (2) Motor Carriers. No motor carrier shall allow or require its 
drivers to use a hand-held mobile telephone while driving a CMV.
    (b) Definitions. For the purpose of this section only, driving 
means operating a commercial motor vehicle, with the motor running, 
including while

[[Page 80033]]

temporarily stationary because of traffic, a traffic control device, or 
other momentary delays. Driving does not include operating a commercial 
motor vehicle with or without the motor running 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.
    (c) Exceptions. (1) School bus operations and vehicles designed or 
used to transport 9 to 15 passengers, including the driver, not for 
direct compensation. The provisions of Sec.  390.3(f)(1) and (6) of 
this chapter are not applicable to this section.
    (2) Emergencies. Using a hand-held mobile telephone is permissible 
by drivers of a CMV when necessary to communicate with law enforcement 
officials or other emergency services.

    Issued on: December 13, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-31736 Filed 12-20-10; 8:45 am]
BILLING CODE 4910-EX-P