[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 23923-23929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10140]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

[Docket No. PHMSA-2010-0227 (HM-256A)]
RIN 2137-AE65


Hazardous Materials: Restricting the Use of Cellular Phones by 
Drivers of Commercial Motor Vehicles in Intrastate Commerce

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA) proposes to restrict the use of hand-held mobile telephones, 
including hand-held cell phones, 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. Additionally, in accordance 
with requirements proposed by the Federal Motor Carrier Safety 
Administration (FMCSA), motor carriers are prohibited from requiring or 
allowing drivers of covered motor vehicles to engage in the use of 
hand-held mobile telephones while driving. 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 commercial motor vehicles.

DATES: Comments must be received by June 28, 2011.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2010-0227 by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: (202) 493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rule. Note that all comments received will be 
posted without change, including any personal information provided. 
Please see the discussion of the Privacy Act below.
    Docket: For access to the docket to read background documents and 
comments received, go to http://www.regulations.gov at any time or 
DOT's Docket Operations Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Delmer Billings, Office of Hazardous 
Materials Safety, (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 tackle distracted driving, and will lead by example. The 
individual agencies of the US DOT are working together to share 
knowledge, promote a

[[Page 23924]]

greater understanding of the issue, and identify additional strategies 
to end distracted driving. Additionally, several states have forbidden 
the operation of many types of electronic devices, including cellular 
phones, 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. PHMSA Distracted Driving Safety Advisory Notice and Texting 
Restriction

    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 cellular (mobile) phones and electronic 
devices while operating a commercial motor vehicle (CMV; 49 CFR 383.5).
    On February 28, 2011 PHMSA issued a final rule (HM-256; PHMSA-2010-
0221 (76 FR 10771)) to prohibit 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. The final rule stresses the 
heightened risk of transportation incidents involving hazardous 
materials when CMV drivers are distracted by electronic devices. 
Accordingly, both the February 28, 2011 final rule and this notice of 
proposed rulemaking (NPRM) urge motor carriers that transport hazardous 
materials to institute policies and provide awareness training to 
discourage the use of mobile telephones and electronic devices by CMV 
drivers.

C. FMCSA Rulemaking and Definitions

1. FMCSA Rulemaking
    On December 21, 2010 (Docket FMCSA-2010-0096 (75 FR 80014)) FMCSA 
published an NPRM proposed to restrict the use of hand-held mobile 
telephone use, including cell phone use, by CMV drivers as a necessary 
component of an overall strategy to reduce the number of crashes caused 
by distracted driving. The FMCSA NPRM focuses on all interstate CMV 
drivers, including those drivers of CMVs that do not require a CDL. In 
general, the FMCSA proposal would cover all CMV drivers subject to 
FMCSA's safe driving rules under 49 CFR part 392.
    Additionally, on September 27, 2010, the Federal Motor Carrier 
Safety Administration (FMCSA) published a final rule limiting the use 
of wireless communication devices by CMV drivers (Docket FMCSA-2009-
0370 (75 FR 59118)). The FMCSA final rule prohibits texting by CMV 
drivers operating in interstate commerce and imposes sanctions for 
drivers that fail to comply. In the final rule FMCSA cites numerous 
studies evaluating the dangers of various forms of distracted driving.
2. Definitions
    In existing Federal Motor Carrier Safety Regulations (FMCSRs; 49 
CFR Parts 350-399) FMCSA defines a ``CMV'' in Sec.  383.5 of the 49 CFR 
as follows:
    Commercial motor vehicle means a motor vehicle or combination of 
motor vehicles used in commerce to transport passengers or property if 
the motor vehicle--
    (a) 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);
    (b) Has a gross vehicle weight rating of 11,794 or more kilograms 
(26,001 pounds or more);
    (c) Is designed to transport 16 or more passengers, including the 
driver; or
    (d) Is of any size and is used in the transportation of hazardous 
materials as defined in this section.
    In its December 21, 2010 NPRM addressing the use of hand-held 
mobile telephones by CMV drivers, FMCSA proposed to define the terms 
``mobile telephone'' and ``using a hand-held mobile telephone'' in 
Sec.  390.5 as follows:
    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 twoway or Citizens Band Radio services.
    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.
    In addition, in its NPRM FMCSA proposes to define the term 
``driving'' in Sec.  392.82 as follows:
    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. Studies, Data, and Analysis on Driver Distractions

    Distracted driving reduces a driver's situational awareness, 
decision making, or performance; and it may result 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. In its NPRM, FMCSA states:

    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. 
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.\1\
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    \1\ Driver To Stand Trial In Fatal School Bus Crash. (April 20, 
2010) Philadelphia, PA: KYW-TV. Retrieved from the CBS3 Web site, 
July 21, 2010, from: http://cbs3.com/local/montgomery.county.school.2.1645628.html.

    Below we summarize studies, data, and analysis that provide the 
foundation for this NPRM.
1. NTSB Safety Recommendation H-06-27
    On November 14, 2004, a motor coach 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;

[[Page 23925]]

     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. 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.\2\ MCSAC 
believed that the available research shows that cognitive distractions 
pose a safety risk and that there will be increases in crashes from 
cell phone use and texting unless the problems are addressed. 
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.
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    \2\ 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.
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3. Driver Distraction in Commercial Vehicle Operations (``the VTTI 
Study'')--Olson et al., 2009 \3\
    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed its ``Driver Distraction in Commercial 
Vehicle Operations'' study \4\ 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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    \3\ 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?
    \4\ 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 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. According to this research, drivers 
dialing a cell phone took their eyes off the forward roadway for an 
average of 3.8 seconds and for 1.3 seconds when talking/listening to a 
hand-held phone. Drivers took their eyes off the forward roadway a 
combined total of 5.1 seconds. At 55 mph (or 80.7 feet per second), 
this equates to a driver traveling 411 feet. At 65 mph (or 95.3 feet 
per second), the driver would have traveled 486 feet without looking at 
the roadway. This clearly creates a significant risk to the safe 
operation of the CMV.
    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 dialing a cell phone is 2.5 and for talking/
listening to a hand-held phone is 0.2, which means that a combined 2.7 
percent of the incidence of safety-critical events is attributable to 
dialing and talking/listening to a hand-held phone, and thus, could be 
avoided by not performing these activities.

   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

[[Page 23926]]

 
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 
FMCSA Docket FMCSA-2009-0370, available at http://www.regulations.gov.
4. Cell Phone Distraction in Commercial Trucks and Buses: Assessing 
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \5\
    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.
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    \5\ 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. (Final Report due 
Spring 2010).
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    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 use 
cell phones frequently, the data suggest that truck and bus drivers who 
use their cell phone to make calls, text, e-mail, or access the 
Internet are very likely to be involved in a safety-critical event.
    Additional research and data are specifically identified in FMCSA's 
NPRM on restricting cell phone use by CMV drivers.

E. Existing 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.

    2. 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. FMCSA
    In light of the available studies, the NTSB recommendation, and 
MCSAC's recommendations, FMCSA has proposed a restriction on the use of 
mobile (cellular) telephones by CMV drivers operating in interstate 
commerce. 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 mobile telephone use.
    FMCSA's 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 mobile telephone use by a driver who 
is operating a CMV in interstate commerce.
    The proposed rule would also require interstate motor carriers to 
ensure compliance by their drivers with the restrictions on use of a 
mobile telephone while driving a CMV. Motor carriers would be 
prohibited from requiring or allowing drivers of CMVs to use a mobile 
telephone while operating in interstate commerce.
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

[[Page 23927]]

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
    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 one 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.

II. Applicability of this NPRM

    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 Sec.  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.\6\
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    \6\ 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. (See 49 CFR 390.5)
---------------------------------------------------------------------------

    The texting restrictions adopted by FMCSA in under Docket FMCSA-
2009-0370 have been incorporated into Sec.  392.80 of the FMCSRs and 
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.\7\ As such, any requirements adopted by FMCSA 
regarding distracted driving would not apply to motor carriers and 
drivers that transport covered hazardous materials in intrastate 
commerce.
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    \7\ In accordance with Sec.  390.3(a) the rules in Subchapter B, 
including Parts 350-399, of the 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.
---------------------------------------------------------------------------

    PHMSA developed this NPRM to expand the limitations on the use of 
hand-held mobile telephones proposed by FMCSA's NPRM to the 
transportation of 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, including cell phones, are equally 
applicable to drivers transporting covered hazardous materials via 
intrastate as they are to interstate commerce. The use of a hand-held 
mobile telephone while driving constitutes a safety risk to the motor 
vehicle driver, other motorists, and bystanders. As proposed in the 
FMCSA NPRM, the consequences of using hand-held mobile telephones while 
driving can include state and local sanctions, fines, and possible 
revocation of commercial driver's licenses.
    PHMSA has determined that the use of hand-held mobile phones 
presents a hazard equally, whether the motor carrier is involved in 
interstate or intrastate commerce. PHMSA estimates that there are 
approximately 1,490 intrastate motor carriers that could be affected by 
this rulemaking. Studies performed on behalf FMCSA have estimated that 
the cost of a property damage only crash is $17,000. Crashes involving 
a fatality are estimated to be approximately $6 million. Based on 
estimates outlined in the Preliminary Regulatory Impact Assessment 
PHMSA estimates the costs as follows:

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost of Lost Carrier Productivity..........................       $5,148
Cost of Increased Fuel Consumption.........................       $9,535
Cost of Parking, Entering and Exiting Roadway Crashes......      $10,335
                                                            ------------
    Total Costs............................................      $25,018
                                                            ============
Benefit of Eliminating One Fatality........................       \1\ $6
Break-even Number of Lives Saved...........................          < 1
Benefit of Eliminating One Crash...........................      $17,000
Break-even of Number of Crashes Prevented..................         < 2
------------------------------------------------------------------------
\1\ In millions.

III. Summary of Changes

    In accordance with the comments received and public meeting 
discussion this NPRM proposes the following changes by section:
    Section 177.804. We propose to add a new paragraph (b) to prohibit 
the use of hand-held mobile telephones by any CMV driver 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. As such, motor carriers and drivers who engage 
in the transportation of covered materials must comply with the 
distracted driving requirements in Sec.  392.82 of the FMCSR.

IV. 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

[[Page 23928]]

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 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 proposed rule do not exceed the $100 million 
annual threshold.
    Executive Order 12866 requires 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 NPRM is to expand upon 
the applicability of the FMCSA NPRM to prohibit use of cell phones 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 
proposed 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 registrant 
is indeed a carrier, the mode of transportation used, and the US DOT 
Number.\8\ Using this key data from the registration form submissions 
we can make some assumptions to estimate the number of motor carriers 
subject to this NPRM. Based on our analysis of form 5800.2-18,841 
persons have registered as motor carriers of hazardous materials. Of 
those 18,841 registrants 17,599 included a US DOT Number. Therefore, 
based on the registration data 1,242 motor carriers are considered 
intrastate carriers. We compared these numbers with the FMCSA Motor 
Carrier Management Information System (MCMIS).\9\ 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.
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    \8\ The FMCSRs require certain commercial carriers to obtain a 
US DOT number. 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 U.S. 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.
    \9\ 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.
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    To better define the population of intrastate 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 carriers that are required to 
obtain a US DOT Number through their state even if they operate solely 
in intrastate commerce. In select states, all registrants of commercial 
motor vehicles, even intrastate and non-motor carrier registrants, are 
required to obtain a US DOT Number as a necessary condition for 
commercial vehicle registration. FMCSA indicates that 28 states 
currently require motor carriers to obtain a US DOT Number, regardless 
if they operate in interstate or intrastate commerce.\10\ Based on 
these assumptions, the number of intrastate carriers identified through 
hazmat registration data may be under estimated by up to 60% to 70%.
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    \10\ ``What is a USDOT Number?'' See: http://www.fmcsa.dot.gov/registration-licensing/registration-USDOT.htm.
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    Based on the assumptions outlined above and PHMSA's desire to take 
a conservative approach to the affected population we will multiply the 
number of intrastate carriers identified through registration data by a 
20% under reporting factor. This will result in a total population 
affected by this rulemaking of 1,490 intrastate carriers (1,242 x 1.20 
= 1,490). This conservative estimate ensures that PHMSA is fully 
considering the impacts of expanding applicability of the FMCSA NPRM to 
prohibit cell phone 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 make cell phone calls; (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 proposed rule will cost $ 25,018 
annually. Additionally, PHMSA has not identified a significant increase 
in crash risk associated with drivers' strategies for complying with 
this proposed rule. As indicated in the regulatory evaluation, a crash 
resulting in property damage only (PDO) averages approximately $17,000 
in damages. Consequently, the cell phone use restriction would have to 
eliminate just two PDO crash every year for the benefits of this 
proposed 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..........................       $5,148
Cost of Increased Fuel Consumption.........................       $9,535
Cost of Parking, Entering and Exiting Roadway Crashes......      $10,335
                                                            ------------
    Total Costs............................................      $25,018
                                                            ============
Benefit of Eliminating One Fatality........................       \1\ $6
Break-even Number of Lives Saved...........................         < 1
------------------------------------------------------------------------
\1\ In millions.

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

[[Page 23929]]

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. We invite 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.

D. Executive Order 13175

    This proposed 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 proposed 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 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 
proposed 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 proposed rule. We assume that all 
of the 1,490 motor carriers identified by this proposed 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 cell phone use while on-duty and fuel 
usage costs for pulling to the side of the road to idle the truck or 
passenger-carrying vehicle and making a cell phone call. The majority 
of motor carriers are small entities. Therefore, PHMSA will use the 
total cost of this proposed rule ($25,018) applied to the number of 
small entities (1,490) as a worse case evaluation which would average 
$16.79 annually per carrier.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This notice 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 draft 
rules 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 proposed rule does not impose unfunded mandates, under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.dot.gov. This proposed 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 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. Interested parties are 
invited to address the potential environmental impacts of regulations 
applicable to the storage of explosives transported in commerce. We are 
particularly interested in comments about safety and security measures 
that would provide greater benefit to the human environment or on 
alternative actions the agency could take that would provide beneficial 
impacts.

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 Chapters I and III are 
proposed to be amended as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    1. The authority citation for part 177 would continue to read as 
follows:

    Authority:  49 U.S.C. 5101-5127; 49 CFR 1.53.

    2. Section 177.804 is amended by adding a new paragraph (c) to read 
as follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

* * * * *
    (c) Prohibition against hand-held mobile telephones. In accordance 
with Sec.  392.82 of the FMCSRs a 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 may not engage in, allow, or require use of a hand-held 
mobile telephone while driving.

    Issued in Washington, DC, on April 21, 2011, under authority 
delegated in 49 CFR Part 106.
 Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-10140 Filed 4-28-11; 8:45 am]
BILLING CODE 4910-60-P