[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Rules and Regulations]
[Pages 10771-10778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4273]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

[Docket No. PHMSA-2010-0221 (HM-256)]
RIN 2137-AE63


Hazardous Materials: Limiting the Use of Electronic Devices by 
Highway

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA) is prohibiting texting on electronic devices by drivers during 
the operation of a motor vehicle containing a quantity of hazardous 
materials requiring placarding or any quantity of a select agent or 
toxin listed in the Department of Health and Human Services ``Select 
Agents and Toxins'' regulations. Additionally, in accordance with 
requirements adopted on September 27, 2010 by the Federal Motor Carrier 
Safety Administration (FMCSA), motor carriers are prohibited from 
requiring or allowing drivers of covered motor vehicles to engage in 
texting while driving. This rulemaking improves the health and safety 
on the Nation's highways by reducing the prevalence of distracted 
driving-related crashes, fatalities, and injuries involving drivers of 
commercial motor vehicles.

DATES: This final rule is effective March 30, 2011.

ADDRESSES: For access to the docket to read background documents, 
including those referenced in this document, or to read comments 
received, go to http://www.regulations.gov at any time and insert 
PHMSA-2010-0221 in the ``Keyword'' box, and then click ``Search.'' You 
may also view the docket online by visiting the Docket Management 
Facility 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.

FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Background

A. US DOT Strategy

    The United States Department of Transportation (US DOT) is leading 
the effort to end the dangerous practice of distracted driving on our 
nation's roadways and in other modes of transportation. 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 that shifts the attention away from the fundamental driving 
task. The US DOT has identified three main types of distraction that 
occur while operating a motor vehicle:
    1. Visual--taking your eyes off of the road;
    2. Manual--taking your hands off of the wheel; and
    3. Cognitive--taking your mind off of driving.
    The US DOT is working across the spectrum with private and public 
entities to address distracted driving, and will lead by example. The 
individual agencies of the US DOT are working together to share 
knowledge, promote a greater understanding of the issue, and identify 
additional strategies to end distracted driving. Additionally, the 
majority of the 50 States have forbidden texting while driving any 
motor vehicle. See US DOT Distracted Driving Web site, http://www.distraction.gov; see also Insurance Institute for Highway Safety 
Web site, http://www.iihs.org/.

B. NPRM

    On September 27, 2010, PHMSA proposed to limit the dangerous 
practice of texting on electronic devices by drivers during the 
operation of a motor vehicle containing a quantity of hazardous 
materials requiring placarding under part 172 of the 49 CFR or any 
quantity of a select agent or toxin listed in 42 CFR part 73. PHMSA 
received one comment in response to the NPRM. Generally, the commenter 
expresses support for PHMSA's efforts, but requests expansion of the 
proposed texting limitation to include any person being paid to drive 
any type of vehicle. Additionally, the commenter suggests that PHMSA 
prohibit the use of any type of electronic device while driving. The 
comment is discussed in more detail in the Section-by-Section and 
Discussion of Comments sections of this final rule.

C. FMCSA Rules and Definitions

1. Final Rule
    On September 27, 2010 the Federal Motor Carrier Safety 
Administration published a final rule to codify requirements to limit 
the use of wireless communication devices by commercial motor vehicle 
(CMV) drivers. FMCSA's final rule adopts a prohibition consistent with 
requirements originally proposed and considers comments submitted in 
response to the original NPRM issued on April 1, 2010 under Docket 
FMCSA-2009-0370 (75 FR 16391). The final rule prohibits texting by CMV 
drivers operating in interstate commerce and imposes sanctions for 
drivers that fail to comply. Most directly applicable to this final 
rule, the FMCSA final rule adopts requirements prohibiting texting on 
electronic devices by drivers transporting a quantity of hazardous 
materials requiring placarding under part 172 of the 49 CFR or any 
quantity of a select agent or toxin listed in 42 CFR part 73. In the 
rule FMCSA clearly indicates that its authority to regulate hazardous 
materials is limited to CMV drivers operating in interstate commerce. 
Additionally, the FMCSA final rule cites numerous studies evaluating 
the dangers of various forms of distracted driving.
2. Notice of Proposed Rulemaking
    On April 1, 2010, FMCSA published a Notice of Proposed Rulemaking 
in the Federal Register (75 FR 16391). FMCSA reviewed the over 400 
public comments submitted in response to the proposed rule. Changes 
resulting from FMCSA's comment evaluation are fully described in the 
preamble of the FMCSA final rule published in the Federal Register on 
September 27, 2010 (75 FR 59118; 59125).

[[Page 10772]]

3. Definitions
    Several terms and corresponding definitions found in the Federal 
Motor Carrier Safety Regulations (FMCSRs; 49 CFR parts 350-399) are 
applicable to this final rule. Below we summarize key terms:
    a. Section 383.5 indicates that a commercial motor vehicle is a 
motor vehicle or combination of motor vehicles used in commerce to 
transport passengers or property if the motor vehicle--has a gross 
combination weight rating of 11,794 kilograms or more (26,001 pounds or 
more) inclusive of a towed unit(s) with a gross vehicle weight rating 
of more than 4,536 kilograms (10,000 pounds); has a gross vehicle 
weight rating of 11,794 or more kilograms (26,001 pounds or more); is 
designed to transport 16 or more passengers, including the driver; or 
is of any size and is used in the transportation of hazardous materials 
as defined in this section.
    b. Section 383.5 indicates that an electronic device includes, but 
is not limited to, a cellular telephone; personal digital assistant; 
pager; computer; or any other device used to input, write, send, 
receive, or read text.
    c. Section 383.5 indicates that texting means manually entering 
alphanumeric text into, or reading text from, an electronic device. 
Texting 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. Texting does not include--
reading, selecting, or entering a telephone number, an extension 
number, or voicemail retrieval codes and commands into an electronic 
device for the purpose of initiating or receiving a phone call or using 
voice commands to initiate or receive a telephone call; inputting, 
selecting, or reading information on a global positioning system or 
navigation system; or using a device capable of performing multiple 
functions (e.g., fleet management systems, dispatching devices, smart 
phones, citizen band radios, music players, etc.) for a purpose that is 
not otherwise prohibited in this part.
    d. Section 392.80(c) indicates that driving 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 and has halted in a 
location where the vehicle can safely remain stationary.

D. PHMSA Distracted Driving Safety Advisory Notice

    In support of the US DOT strategy to end distracted driving, PHMSA 
issued ``Safety Advisory Notice: Personal Electronic Device Related 
Distractions (Safety Advisory Notice No.10-5)'' on August 3, 2010 (75 
FR 45697) to alert the hazardous materials community to the dangers 
associated with the use of mobile phones and electronic devices while 
operating a commercial motor vehicle (CMV; 49 CFR 383.5). In the 
notice, PHMSA stresses the heightened risk of transportation incidents 
involving hazardous materials when CMV drivers are distracted by 
electronic devices. Accordingly, the notice urges motor carriers that 
transport hazardous materials to institute policies and provide 
awareness training to discourage the use of mobile telephones and 
electronic devices by motor vehicle drivers.

E. Studies, Data, and Analysis on Driver Distractions

    Distracted driving reduces a driver's situational awareness, 
decision making, or performance, possibly resulting in a crash, near-
crash, or unintended lane departure by the driver. In an effort to 
understand and mitigate crashes associated with driver distraction, the 
US DOT has been studying the distracted driving issue with respect to 
both behavioral and vehicle safety countermeasures. Researchers and 
writers classify distraction into various categories, depending on the 
nature of their work. Texting while driving applies to these three 
types of driver distraction (visual, physical, and cognitive), and thus 
may pose a considerably higher safety risk than other sources of driver 
distraction. Below we summarize recommendations, studies, data, and 
analysis that provide the foundation for this final rule.
1. NTSB Safety Recommendation H-06-27
    On November 14, 2004, a motorcoach crashed into a bridge overpass 
on the George Washington Memorial Parkway in Alexandria, Virginia. This 
crash was the impetus for a National Transportation Safety Board (NTSB) 
investigation and subsequent recommendation (Safety Recommendation H-
06-27) to FMCSA regarding cell phone use by passenger-carrying CMVs. 
The 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.
    In a letter to NTSB dated March 5, 2007, FMCSA 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'' was published on October 1, 2009.
2. Driver Distraction in Commercial Vehicle Operations (``the VTTI 
Study'')--Olson et al., 2009 \1\
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    \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, August 2010, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx?
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    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed its ``Driver Distraction in Commercial 
Vehicle Operations'' study \2\ and released the final report on October 
1, 2009. The purpose of the study was to investigate the prevalence of 
driver distraction in CMV safety-critical events (i.e., crashes, near-
crashes, lane departures, as explained in the VTTI study) recorded in a 
naturalistic data set that included over 200 truck drivers and 3 
million miles of data. The dataset was obtained by placing monitoring 
instruments on vehicles and recording the behavior of drivers 
conducting real-world revenue-producing operations. The study found 
that drivers were engaged in non-driving related tasks in 71 percent of 
crashes, 46 percent of near-crashes, and 60 percent of all safety-
critical events. Tasks that significantly increased risk included 
texting, looking at a map, writing on a notepad, or reading.
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    \2\ The formal peer review of the ``Driver Distraction in 
Commercial Vehicle Operations Draft Final Report'' was completed by 
a team of three technically qualified peer reviewers who are 
qualified (via their experience and educational background) to 
critically review driver distraction-related research.
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    Odds ratios (OR) were calculated to identify tasks that were high 
risk. For a given task, an odds ratio of ``1.0'' indicated the task or 
activity was equally likely to result in a safety-critical event as it 
was a non-event or

[[Page 10773]]

baseline driving scenario. An odds ratio greater than ``1.0'' indicated 
a safety-critical event was more likely to occur, and odds ratios of 
less than ``1.0'' indicated a safety-critical event was less likely to 
occur. The most risky behavior identified by the research was ``text 
message on cell phone,'' \3\ with an odds ratio of 23.2. This means 
that the odds of being involved in a safety-critical event are 23.2 
times greater for drivers who text message while driving than for those 
who do not. Texting drivers took their eyes off the forward roadway for 
an average of 4.6 seconds during the 6-second interval surrounding a 
safety-critical event. At 55 mph (or 80.7 feet per second), this 
equates to a driver traveling 371 feet, the approximate length of a 
football field, including the end zones, without looking at the 
roadway. At 65 mph (or 95.3 feet per second), the driver would have 
traveled approximately 439 feet without looking at the roadway. This 
clearly creates a significant risk to the safe operation of the CMV.
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    \3\ Although the final report does not elaborate on texting, the 
drivers were engaged in the review, preparation, and transmission of 
typed messages via wireless phones.
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    Other tasks that drew drivers' eyes away from the forward roadway 
in the study involved the driver interacting with technology: 
Calculator (4.4 seconds), dispatching device (4.1 seconds), and cell 
phone dialing (3.8 seconds). Technology-related tasks were not the only 
ones with high visual demands. Non-technology tasks with high visual 
demands, including some common activities, were: reading (4.3 seconds), 
writing (4.2 seconds), looking at a map (3.9 seconds), and reaching for 
an object (2.9 seconds).
    The study further analyzed population attributable risk (PAR), 
which incorporates the frequency of engaging in a task. If a task is 
done more frequently by a driver or a group of drivers, it will have a 
greater PAR percentage. Safety could be improved the most if a driver 
or group of drivers were to stop performing a task with a high PAR. The 
PAR percentage for texting is 0.7 percent, which means that 0.7 percent 
of the incidence of safety-critical events is attributable to texting, 
and thus, could be avoided by not texting.

   Table 1--Odds Ratio and Population Attributable Risk Percentage by
                              Selected Task
------------------------------------------------------------------------
                                                            Population
                                                           attributable
                   Task                      Odds ratio        risk
                                                           percentage *
------------------------------------------------------------------------
                        Complex Tertiary ** Task
------------------------------------------------------------------------
Text message on cell phone................         23.2              0.7
Other--Complex (e.g., clean side mirror)..         10.1              0.2
Interact with/look at dispatching device..          9.9              3.1
Write on pad, notebook, etc...............          9.0              0.6
Use calculator............................          8.2              0.2
Look at map...............................          7.0              1.1
Dial cell phone...........................          5.9              2.5
Read book, newspaper, paperwork, etc......          4.0              1.7
------------------------------------------------------------------------
                        Moderate Tertiary ** Task
------------------------------------------------------------------------
Use/reach for other electronic device.....          6.7              0.2
Other--Moderate (e.g., open medicine                5.9              0.3
 bottle)..................................
Personal grooming.........................          4.5              0.2
Reach for object in vehicle...............          3.1              7.6
Look back in sleeper berth................          2.3              0.2
Talk or listen to hand-held phone.........          1.0              0.2
Eating....................................          1.0                0
Talk or listen to CB radio................          0.6                *
Talk or listen to hands-free phone........          0.4                *
------------------------------------------------------------------------
* Calculated for tasks where the odds ratio is greater than one.
** Non-driving related tasks.

    A complete copy of the final report for this study is included in 
PHMSA Docket PHMSA-2010-0221, available at http://www.regulations.gov.
3. Text Messaging During Simulated Driving--Drews, et al., 2009 \4\
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    \4\ Drews, F.A., Yazdani, H., Godfrey, C.N., Cooper, J.M., & 
Strayer, D.L. (Dec. 16, 2009). Text messaging during simulated 
driving. Salt Lake City, Utah: The Journal of Human Factors and 
Ergonomics Society Online First. Published as doi:10.1177/
0018720809353319. Retrieved December 22, 2009, from http://hfs.sagepub.com/cgi/rapidpdf/0018720809353319?ijkey=gRQOLrGlYnBfc&keytype=ref&siteid=sphfs.
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    This research was designed to identify the impact of text messaging 
on simulated driving performance. Using a high-fidelity driving 
simulator, researchers measured the performance of 20 pairs of 
participants while: (1) Only driving, and (2) driving and text 
messaging. Participants followed a pace car in the right lane, which 
braked 42 times, intermittently. Participants were 0.2 seconds slower 
in responding to the brake onset when driving and text messaging, 
compared to driving-only. When drivers are concentrating on texting, 
either reading or entering, their reaction times to braking events are 
significantly longer.

[[Page 10774]]

4. Driver Workload Effects of Cell Phone, Music Player, and Text 
Messaging Tasks With the Ford SYNC Voice Interface Versus Handheld 
Visual-Manual Interfaces (``The Ford Study'')--Shutko, et al., 2009 \5\
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    \5\ Shutko, J., Mayer, J., Laansoo, E., & Tijerina, L. (2009). 
Driver workload effects of cell phone, music player, and text 
messaging tasks with the Ford SYNC voice interface versus handheld 
visual-manual interfaces (paper presented at SAE World Congress & 
Exhibition, April 2009, Detroit, MI). Warrendale, PA: Society of 
Automotive Engineers International. Available from SAE International 
at: http://www.sae.org/technical/papers/2009-01-0786.
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    A recent study by Ford Motor Company,\6\ involving 25 participants, 
compared using a hands-free voice interface to complete a task while 
driving with using personal handheld devices (cell phone and music 
player) to complete the same task while driving. Of particular interest 
were the results of this study with regard to total eyes-off-road time 
when texting while driving. The study found that texting, both sending 
and reviewing a text, was extremely risky. The median total eyes-off-
road time when reviewing a text message on a handheld cell phone while 
driving was 11 seconds. The median total eyes-off-road time when 
sending a text message using a handheld cell phone while driving was 20 
seconds.
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    \6\ The Engineering Meetings Board has approved this paper for 
publication. It has successfully completed SAE's peer review process 
under the supervision of the session organizer. This process 
requires a minimum of three (3) reviews by industry experts.
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5. The Effects of Text Messaging on Young Novice Driver Performance--
Hosking, et al., 2006 \7\
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    \7\ Hosking, S., Young, K., & Regan, M. (February 2006). The 
effects of text messaging on young novice driver performance. 
Victoria, Australia: Monash University Accident Research Centre, 
from: http://www.monash.edu.au/muarc/reports/muarc246.pdf.
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    Hosking studied a very different driver population, but obtained 
similar results. This study used an advanced driving simulator to 
evaluate the effects of text messaging on 20 young, novice Australian 
drivers. The participants were between 18 and 21 years old, and they 
had been driving 6 months or less. Legislation in Australia prohibits 
hand-held phones, but a large proportion of the participants said that 
they use them anyway.
    The young drivers took their eyes off the road while texting, and 
they had a harder time detecting hazards and safety signs, as well as 
maintaining the simulated vehicle's position on the road than they did 
when not texting. While the participants did not reduce their speed, 
they did try to compensate for the distraction of texting by increasing 
their following distance. Nonetheless, retrieving and particularly 
sending text messages had the following effects on driving:
     Difficulty maintaining the vehicle's lateral position on 
the road.
     Harder time detecting hazards.
     Harder time detecting and responding to safety signs.
     Up to 400 percent more time with drivers' eyes off the 
road than when not texting.
6. The Effect of Text Messaging on Driver Behavior: A Simulator Study--
Reed and Robbins, 2008 \8\
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    \8\ Reed, N. & Robbins, R. (2008). The effect of text messaging 
on driver behavior: A simulator study. Report prepared for the RAC 
Foundation by Transport Research Laboratory. From: http://www.racfoundation.org/files/textingwhiledrivingreport.pdf.
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    The RAC Foundation commissioned this report\9\ to assess the impact 
of text messaging on driver performance and the attitudes surrounding 
that activity in the 17 to 24-year-old driver category. There were 17 
participants in the study. The results demonstrated that driving was 
impaired by texting. Researchers reported that ``failure to detect 
hazards, increased response times to hazards, and exposure time to that 
risk have clear implications for safety.'' They reported an increased 
stopping distance of 12.5 meters, or three car lengths, and increased 
variability of lane position.
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    \9\ The work described in this report was carried out in the 
Human Factors and Simulation group of the Transport Research 
Laboratory. The authors are grateful to Andrew Parks who carried out 
the technical review and auditing of this report.
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7. Cell Phone Distraction in Commercial Trucks and Buses: Assessing 
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \10\
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    \10\ 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.
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    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 vehicle sensors) in actual driving situations created a 
scientific method to study driver behavior under the daily pressures of 
real-world driving conditions. 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; it 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 dataset.
    Odds ratios were calculated to show a measure of association 
between involvement in a safety-critical event and performing non-
driving related tasks, such as dialing or texting. The odds ratios show 
the odds of being involved in a safety-critical event when a non-
driving related task is present compared to situations when there is no 
non-driving related task. The odds ratios for text/e-mail/accessing the 
Internet tasks were very high, indicating a strong relationship between 
text/e-mail/accessing the Internet while driving and involvement in a 
safety-critical event. Very few instances of this behavior were 
observed during safety-critical events in the current study and even 
fewer during control events. Although truck and bus drivers do not text 
frequently, the data suggest that truck and bus drivers who use their 
cell phone to text, e-mail, or access the Internet are very likely to 
be involved in a safety-critical event.

E. Existing Texting Prohibitions and Restrictions by Federal, State, 
and Local Governments

1. Executive Order 13513
    The President immediately used the feedback from the DOT Summit on 
Distracted Driving and issued Executive Order 13513, which ordered 
that:

    Federal employees shall not engage in text messaging (a) when 
driving a Government Owned Vehicle, or when driving a Privately 
Owned Vehicle while on official Government business, or (b) when 
using electronic equipment supplied by the Government while driving.

The Executive Order is applicable to the operation of CMVs by Federal 
government employees carrying out their duties and responsibilities, or 
using electronic equipment supplied by the government. This order also 
encourages contractors to comply while operating CMVs on behalf of the 
Federal government.

[[Page 10775]]

2. Regulatory Guidance
    On January 27, 2010, FMCSA published regulatory guidance concerning 
the applicability of 49 CFR 390.17, Additional equipment and 
accessories, to any CMV operator engaged in ``texting'' on an 
electronic device while driving a CMV in interstate commerce (75 FR 
4305). The guidance interpreted Sec.  390.17 as prohibiting texting on 
electronic devices while driving because it decreases the safety of 
operations.
3. Federal Railroad Administration
    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 1, 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 
cell phones and texting. FRA cited numerous examples of the adverse 
impact that electronic devices can have on safe operations. These 
examples included fatal accidents that involved operators who were 
distracted while texting or talking on a cell phone. In light of these 
incidents, FRA is imposing restrictions on the use of such electronic 
devices, both through its order and a rulemaking that seeks to codify 
the order. In a NPRM published May 18, 2010, FRA proposed to amend its 
railroad communications regulations by restricting the use of mobile 
telephones and other distracting electronic devices by railroad 
operating employees (75 FR 27672).
4. State Restrictions
    Texting while driving is prohibited in 30 States and the District 
of Columbia. A list of States and territories that have taken such 
actions can be found at the following DOT Web site: http://www.distraction.gov/state-laws. Generally, the State requirements are 
applicable to all drivers operating motor vehicles within those 
jurisdictions, including CMV operators. Because some States do not 
currently prohibit texting while driving, there is a need for a Federal 
regulation to address the safety risks associated with texting by CMV 
drivers. Generally, State laws and regulations remain in effect and 
could continue to be enforced with regard to CMV drivers, provided 
those laws and regulations are compatible with the Federal 
requirements. This final rule does not affect the ability of States to 
institute new prohibitions on texting while driving. For more 
information see the Federalism section later in this document.

II. Applicability of This Final Rule

    PHMSA's Office of Hazardous Materials Safety is the Federal safety 
authority for the transportation of hazardous materials by air, rail, 
highway, and water. Under the Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the 
Secretary of Transportation is charged with protecting the nation 
against the risks to life, property, and the environment that are 
inherent in the commercial transportation of hazardous materials. The 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) are 
promulgated under the mandate in Section 5103(b) of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.) that the Secretary of Transportation ``prescribe regulations for 
the safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B) 
provides that the HMR ``shall govern safety aspects, including 
security, of the transportation of hazardous material the Secretary 
considers appropriate.'' As such, PHMSA strives to reduce the risks 
inherent to the transportation of hazardous materials in both 
intrastate and interstate commerce.\11\
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    \11\ The term ``intrastate commerce'' is trade, traffic, or 
transportation within a single State. The term ``interstate 
commerce'' is trade, traffic, or transportation involving the 
crossing of a State boundary. Additionally, ``interstate commerce'' 
includes transportation originating or terminating outside the state 
of United States.
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    The final rule published in the Federal Register on September 27, 
2010 by FMCSA under Docket FMCSA-2009-0370 incorporates texting 
restrictions into Sec.  392.80 of the FMCSRs that apply to CMV motor 
carriers and drivers in interstate commerce. During the coordination 
process for PHMSA's August 3, 2010 safety advisory notice on distracted 
driving, PHMSA and FMCSA representatives expressed concern that changes 
to the FMCSRs regarding distracted driving would only apply to motor 
carriers and drivers of CMVs that operate in interstate commerce.\12\ 
As such, FMCSA's final rule does not apply to motor carriers and 
drivers that transport a quantity of hazardous materials requiring 
placarding under part 172 of the 49 CFR or any quantity of a material 
listed as a select agent or toxin in 42 CFR part 73 in intrastate 
commerce.
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    \12\ In accordance with Sec.  390.3(a) the rules in Subchapter 
B, including parts 350-399, of 49 CFR are applicable to all 
employers, employees, and commercial motor vehicles, which transport 
property or passengers in interstate commerce. The only FMCSA 
regulations that are applicable to intrastate operations are: the 
commercial driver's license (CDL) requirement, for drivers operating 
commercial motor vehicles as defined in 49 CFR 383.5; controlled 
substances and alcohol testing for all persons required to possess a 
CDL; and minimum levels of financial responsibility for the 
intrastate transportation of certain quantities of hazardous 
materials and substances.
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    PHMSA developed its NPRM and this final rule to expand the 
population of drivers who are prohibited from texting by FMCSA's final 
rule to include drivers who transport a quantity of hazardous materials 
requiring placarding under part 172 of the 49 CFR or any quantity of a 
material listed as a select agent or toxin in 42 CFR part 73 in 
intrastate commerce. The safety benefits associated with limiting the 
distractions caused by electronic devices are equally applicable to 
drivers transporting a quantity of hazardous materials requiring 
placarding under part 172 of the 49 CFR or any quantity of a material 
listed as a select agent or toxin in 42 CFR part 73 in intrastate 
commerce as they are to interstate commerce. The use of an electronic 
device while driving constitutes a safety risk to the motor vehicle 
driver, other motorists, and bystanders. As codified by the September 
27, 2010 FMCSA final rule, the consequences of texting while driving a 
CMV can include State and local sanctions, fines, and possible 
revocation of a commercial driver's license.

III. Discussion of Comments

    PHMSA received one comment in response to our September 27, 2010 
NPRM. Generally, the commenter expresses support for PHMSA's efforts, 
but requests expansion of the proposed texting limitation to include 
any person being paid to drive any type of vehicle. The commenter also 
suggests that the penalty for failure to obey the prohibition should 
result in a loss of driving privileges for six months for the first 
offense and one year for any additional offense. Further, the commenter 
indicates that if any infraction results in injury to pedestrians or 
drivers of other vehicles the driver may lose all driving privileges 
and serve six months for each infraction and up to twenty-three years 
for each fatality. Additionally, the commenter suggests that PHMSA 
prohibit the use of any type of electronic device while driving. The 
comment is discussed and addressed below.
    We appreciate the comment and fully understand the concerns the 
commenter expresses. In regard to the commenter's suggestion that we 
expand the texting prohibition to include any person being paid to 
drive any type of vehicle,

[[Page 10776]]

PHMSA provides the following response. As we discuss in the 
Applicability of this Final Rule section above, PHMSA's regulatory 
authority is limited to the transportation of hazardous materials in 
commerce. Though we see the utility in prohibiting texting by any 
person being paid to drive any type of vehicle, such a change is 
outside of the authority granted to PHMSA.
    The changes proposed in the September 27, 2010 NPRM are intended to 
align the HMR with requirements already adopted by the FMCSA to 
prohibit texting by CMV drivers (see the definition of a ``commercial 
motor vehicle'' in the BACKGROUND section of this final rule). Overall, 
the provisions in FMCSA's final rule consider over 400 comments 
submitted in response to its NPRM issued on April 1, 2010 under Docket 
FMCSA-2009-0370 (75 FR 16391). PHMSA incorporated the changes resulting 
from FMCSA's evaluation of those comments into its September 27, 2010 
NPRM. One key component of the FMCSA definition for a CMV is that it 
applies to a vehicle of any size that is used in the transportation of 
``hazardous materials'' as defined in Sec.  383.5. To be consistent 
with the final rule issued by FMCSA we relied on its definition of a 
``hazardous material'' to be the triggering factor for the texting 
prohibition. The definition for ``hazardous materials'' provided in the 
FMCSRs reads as follows:
    Hazardous materials means any material that has been designated as 
hazardous under 49 U.S.C. 5103 and is required to be placarded under 
subpart F of 49 CFR part 172 or any quantity of a material listed as a 
select agent or toxin in 42 CFR part 73.
    As a result of this decision to promote consistency between the 
Agencies, we are covering the same population of ``hazardous 
materials'' in any size vehicle. Both PHMSA and FMCSA continue to 
support that approach. Therefore, in this final rule we are adopting 
the population of covered drivers and materials as proposed in the 
NPRM. The texting prohibition adopted by this final rule applies to 
drivers who transport a quantity of hazardous materials requiring 
placarding under part 172 of the 49 CFR or any quantity of a material 
listed as a select agent or toxin in 42 CFR part 73.
    In regard to the commenter's suggestions regarding the penalties 
for drivers that violate the texting prohibition, PHMSA provides the 
following response. The FMCSA incorporates disqualification penalties 
into Sec.  391.15 of the FMCSRs. Generally, a driver who is convicted 
of violating the prohibition of texting in Sec.  392.80(a) of the 49 
CFR is disqualified for 60 days if the driver is convicted of two 
violations and 120 days if the driver is convicted of three violations 
of Sec.  392.80(a) of this chapter in separate incidents during any 3-
year period. In addition to these penalties, drivers that are convicted 
of infractions that result in injury to pedestrians or drivers of other 
vehicles may face criminal penalties.
    PHMSA continues to support the penalties established by the 
September 27, 2010 final rule published by the FMCSA. Therefore, we are 
adopting the changes to Sec.  177.804 as proposed.
    In regard to the commenter's suggestion that PHMSA prohibit the use 
of any type of electronic device while driving, PHMSA provides the 
following response. PHMSA and FMCSA are working closely to evaluate the 
risks associated with other distractions and devices that may cause 
distracted driving. As such, the Agencies plan to pursue additional 
restrictions to limit those risks through future regulatory actions.

IV. Section-by-Section

    After fully considering the comments received in response to the 
September 27, 2010 NPRM, PHMSA is adopting the following change, as 
proposed in the NPRM:
    Section 177.804. PHMSA is adding a new paragraph (b) to prohibit 
texting by any person transporting a quantity of hazardous materials 
requiring placarding under part 172 of the 49 CFR or any quantity of a 
material listed as a select agent or toxin in 42 CFR part 73. For 
consistency with existing FMCSA requirements PHMSA makes reference to 
the texting prohibition in Sec.  392.80 of the FMCSRs. Specifically, 
Sec.  392.80 states that motor carriers and drivers transporting 
covered materials may not engage in texting while driving. In addition, 
Sec.  392.80 provides a limited exception for emergency use that allows 
CMV drivers to text if necessary to communicate with law enforcement 
officials or other emergency services.

V. Regulatory Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under authority of the Federal hazardous 
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes 
the Secretary of Transportation to prescribe regulations for the safe 
transportation, including security, of hazardous materials in 
interstate, intrastate, and foreign commerce.

B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    PHMSA has determined that this rulemaking action is a significant 
regulatory action under Executive Order 12866, Regulatory Planning and 
Review, and significant under DOT regulatory policies and procedures 
because of the substantial Congressional and public interest concerning 
the crash risks associated with distracted driving, even though the 
economic costs of the rule do not exceed the $100 million annual 
threshold.
    Executive Orders 12866 and 13563 require agencies to regulate in 
the ``most cost-effective manner,'' to make a ``reasoned determination 
that the benefits of the intended regulation justify its costs,'' and 
to develop regulations that ``impose the least burden on society.'' As 
discussed throughout this rulemaking, the intent of this final rule is 
to expand the applicability of FMCSA's requirements and prohibit 
texting by drivers of motor vehicles that contain a quantity of 
hazardous materials requiring placarding under part 172 of the 49 CFR 
or any quantity of a material listed as a select agent or toxin in 42 
CFR part 73. As a result, the population of motor carriers covered by 
this final rule is comprised of a very small portion of motor carriers 
operating in intrastate commerce.
    PHMSA calculated its affected population by assessing hazmat 
registration data from the 2010-2011 registration year. This data is 
collected on DOT form F 5800.2 in accordance with Sec.  107.608(a) of 
the 49 CFR. Generally, the registration requirements apply to any 
person who offers for transportation or transports a quantity of 
hazardous materials requiring placarding under part 172 of the 49 CFR. 
Additional data collected on form F 5800.2 verify that the person is 
indeed a carrier, the mode of transportation used, and the US DOT 
Number.\13\ Using this key data from the registration form

[[Page 10777]]

submissions we can make some assumptions to estimate the number of 
persons registered that we consider motor carriers subject to this 
final rule. Based on our analysis of form F 5800.2, 18,841 persons have 
registered as motor carriers of hazardous materials. Of those 18,841 
persons 17,599 included a US DOT Number. Therefore, based on PHMSA's 
registration data, the difference between persons registered as motor 
carriers and persons that have obtained a US DOT Number is 1,242 
(18,841 - 17,599 = 1,242). PHMSA considers these persons to be 
intrastate motor carriers. We compared these numbers with the FMCSA 
Motor Carrier Management Information System (MCMIS).\14\ Based on MCMIS 
data we verified that the 1,242 carriers identified through 
registration data have not been issued a US DOT Number by FMCSA.
---------------------------------------------------------------------------

    \13\ The FMCSRs require certain commercial carriers to obtain a 
US DOT number by filling out DOT form MC-150 (OMB Control Number 
2126-0013). Companies that operate commercial vehicles transporting 
passengers or hauling cargo in interstate commerce must be 
registered with the FMCSA and must have a US DOT Number. The US DOT 
Number serves as a unique identifier when collecting and monitoring 
a company's safety information acquired during audits, compliance 
reviews, crash investigations, and inspections. FMCSA provides two 
services for people who need to obtain a US DOT number. The MC-150 
form can be downloaded from the FMCSA Web site in PDF form and 
mailed in; or, they may file electronically via the Web site. Both 
options are found at the following URL: http://www.fmcsa.dot.gov/factsfigs/formspubs.htm.
    \14\ MCMIS contains information on the safety fitness of 
commercial motor carriers (truck & bus) and hazardous material 
shippers subject to both the FMCSRs and the HMR. This information is 
available to the general public through the MCMIS Data Dissemination 
Program.
---------------------------------------------------------------------------

    To better define the population of intrastate motor carriers 
subject to this rulemaking we assessed the data further. Generally, 
registration data is limited to persons that offer or transport 
placarded quantities of hazardous materials. Registration data does not 
include persons that transport a material listed as a select agent or 
toxin in 42 CFR part 73. In addition, the data includes those 
intrastate motor carriers that are required to obtain a US DOT Number 
through their State even if they operate solely in intrastate commerce. 
FMCSA indicates that 28 States currently require motor carriers to 
obtain a US DOT Number, regardless if they operate in interstate or 
intrastate commerce.\15\ Based on these assumptions, the number of 
intrastate carriers identified through hazmat registration data may be 
underestimated by up to 60% to 70%.
---------------------------------------------------------------------------

    \15\ ``What is a USDOT Number?'' See:http://www.fmcsa.dot.gov/registration-licensing/registration-USDOT.htm.
---------------------------------------------------------------------------

    Another assumption that must be considered is that 30 States and 
the District of Columbia have adopted a broad based ban on texting 
while driving. As a result, it is likely that 60% of the carriers 
identified as intrastate carriers are already subject to a ban on 
texting while driving. Accordingly, this would indicate that the number 
of intrastate carriers identified as not covered by a texting ban could 
be overestimated by as much as 60%.
    Based on the assumptions outlined above, and PHMSA's desire to take 
a conservative approach to the affected population, we multiply the 
number of intrastate carriers identified through registration data by a 
20% underreporting factor. This will result in a total population 
affected by this rulemaking of 1,490 intrastate motor carriers (1,242 x 
1.20 = 1,490). In addition to the number of intrastate motor carriers, 
PHMSA estimates that each intrastate motor carrier employs 
approximately 8 drivers. Therefore, the estimated population of 
intrastate motor carrier drivers affected by this final rule is 11,920 
(1,490 x 8 = 11,920). This conservative estimate ensures that PHMSA is 
fully considering the impacts of expanding applicability of the FMCSA 
requirements prohibiting texting by drivers of motor vehicles that 
contain a quantity of hazardous materials requiring placarding under 
part 172 of the 49 CFR or any quantity of a material listed as a select 
agent or toxin in 42 CFR part 73.
    The regulatory evaluation prepared in support of this rulemaking 
considers the following potential costs: (a) Loss in carrier 
productivity due to time spent while parking or pulling over to the 
side of the roadway to perform texting activities; (b) increased fuel 
usage due to idling as well as exiting and entering the travel lanes of 
the roadway; and (c) increased crash risk due to covered CMVs that are 
parked on the side of the roadway and exiting and entering the travel 
lanes of the roadway. The regulatory evaluation also considers 
potential costs to the States. However, since the analysis does not 
yield appreciable costs to the States, further analysis pursuant to the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) was deemed 
unnecessary.
    PHMSA estimates that this final rule will cost $5,227 annually. 
Additionally, PHMSA has not identified a significant increase in crash 
risk associated with drivers' strategies for complying with this final 
rule. As indicated in the regulatory evaluation, a crash resulting in 
property damage only (PDO) averages approximately $17,000 in damages. 
Consequently, the texting prohibition would have to eliminate just one 
PDO crash every 3.25 years for the benefits of this final rule to 
exceed the costs. A summary of the costs and threshold analysis is 
provided in the following table:

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost of Lost Carrier Productivity..........  $438.
Cost of Increased Fuel Consumption.........  $3,411.
Cost of Parking, Entering and Exiting        $1,378.
 Roadway Crashes.
                                            ----------------------------
    Total Costs (annual)...................  $5,227.
Benefit of Eliminating One Fatality........  $6 million.
Break-even Number of Lives Saved...........  < 1.
------------------------------------------------------------------------

    The productivity losses, as well as other costs, were estimated for 
only one year, as the entire threshold analysis was performed as an 
undiscounted annual estimation. The loss of productivity is expected to 
diminish (but not necessarily vanish within one year), as the motor 
carrier industry adjusts to the texting restriction and as new 
(permissible) technologies arise that compensate for the loss of the 
texting functionality. PHMSA is unaware of the specific future 
technologies that might arise, but we continue to research and monitor 
technological changes in the market.

C. Executive Order 13132

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. A rule has implications for Federalism 
under Executive Order 13132, Federalism, if it has a substantial direct 
effect on State or local governments and would either preempt State law 
or impose a substantial direct cost of compliance on them. In the NPRM, 
PHMSA invited State and local governments to comment on the effect that 
the adoption of this rule may have on State or local safety or 
environmental protection programs. PHMSA did not receive any comments 
in response to that request.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the communities of the Indian 
Tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
Federal agencies to consider the effects of the

[[Page 10778]]

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.
    PHMSA has conducted an economic analysis of the impact of this 
final rule on small entities and certifies that a Regulatory 
Flexibility Analysis is not necessary because the rule will not have a 
significant economic impact on a substantial number of small entities 
subject to the requirements of this final rule. We assume that all of 
the 1,490 motor carriers identified by this final rule are small 
entities. However, the direct costs of this rule that small entities 
may incur are only expected to be minimal. They consist of the costs of 
lost productivity from foregoing texting while on-duty and fuel usage 
costs for pulling to the side of the road to idle the truck or 
passenger-carrying vehicle to send or receive a text message. The 
majority of motor carriers are small entities. Therefore, PHMSA will 
use the total cost of this final rule ($5,227) applied to the number of 
small entities (1,490) as a worse case evaluation which would average 
$3.51 annually per carrier.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
rulemakings on small entities are properly considered.

G. Paperwork Reduction Act

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

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

I. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates, under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$140.8 million or more to either State, local, or Tribal governments, 
in the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
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 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477 through 19478) or you may visit http://www.dot.gov. This rule is not a privacy-sensitive rulemaking because 
the rule will not require any collection, maintenance, or dissemination 
of Personally Identifiable Information (PII) from or about members of 
the public.

K. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and that they prepare a detailed statement on actions significantly 
affecting the quality of the human environment. PHMSA's assessment did 
not reveal any significant positive or negative impacts on the 
environment expected to result from the rulemaking action. There could 
be minor impacts on emissions, hazardous materials spills, solid waste, 
socioeconomics, and public health and safety. In the NPRM PHMSA invited 
interested parties to comment on the potential environmental impacts of 
regulations applicable to texting while driving. PHMSA did not receive 
any comments in response to that request.

List of Subjects in 49 CFR part 177

    Hazardous materials transportation, Motor carriers, Radioactive 
materials, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
1. The authority citation for part 177 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


0
2. Section 177.804 is amended by:
0
a. Designating the existing text as paragraph (a);
0
b. Adding a heading to the newly designated paragraph (a); and
0
c. Adding a new paragraph (b) to read as follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

    (a) General. * * *
    (b) Prohibition against texting. In accordance with Sec.  392.80 of 
the FMCSRs a person transporting a quantity of hazardous materials 
requiring placarding under 49 CFR part 172 or any quantity of a 
material listed as a select agent or toxin in 42 CFR part 73 may not 
engage in, allow, or require texting while driving.

    Issued in Washington, DC, on February 17, 2011, under authority 
delegated in 49 CFR part 106.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-4273 Filed 2-25-11; 8:45 am]
BILLING CODE 4910-60-P