[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75470-75488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30749]


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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 2126-AB29

Federal Motor Carrier Safety Administration

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

[Docket No. FMCSA-2010-0096]
RIN 2137-AE65


Drivers of CMVs: Restricting the Use of Cellular Phones

AGENCIES: Federal Motor Carrier Safety Administration (FMCSA) and 
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA and PHMSA are amending the Federal Motor Carrier Safety 
Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR) to 
restrict the use of hand-held mobile telephones by drivers of 
commercial motor vehicles (CMVs). This rulemaking will improve safety 
on the Nation's highways by reducing the prevalence of distracted 
driving-related crashes, fatalities, and injuries involving drivers of 
CMVs. The Agencies also amend their regulations to implement new driver 
disqualification sanctions for drivers of CMVs who fail to comply with 
this Federal restriction and new driver disqualification sanctions for 
commercial driver's license (CDL) holders who have multiple convictions 
for violating a State or local law or ordinance on motor vehicle 
traffic control that restricts the use of hand-held mobile telephones. 
Additionally, motor carriers are prohibited from requiring or allowing 
drivers of CMVs to use hand-held mobile telephones.

[[Page 75471]]


DATES: This rule is effective January 3, 2012.

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 
``FMCSA-2010-0096'' or ``PHMSA-2010-0227'' 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.
    Anyone is able to search the electronic form for 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 the 
U.S. Department of Transportation's (DOT) complete Privacy Act 
Statement in the Federal Register published on January 17, 2008 (73 FR 
3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
contact Mr. Brian Routhier, Transportation Specialist, Federal Motor 
Carrier Safety Administration, Vehicle and Roadside Operation Division, 
at (202) 366-4325 or [email protected]. or contact Ben Supko, Sr. 
Regulations Officer, Standards and Rulemaking Division, Pipeline and 
Hazardous Materials Safety Administration, at (202) 366-8553.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Background
    A. Rationale for the Rule
    B. Legal Authority
III. Discussion of Comments
    A. FMCSA Comments
    B. PHMSA Comments
IV. Discussion of the Rule
V. Regulatory Analyses

I. Abbreviations

ABA American Bus Association
Advocates Advocates for Highway and Auto Safety
AMSA American Moving and Storage Association
API American Petroleum Institute
ATA American Trucking Associations, Inc.
CDL Commercial Driver's License
CMV Commercial Motor Vehicle
DOT United States Department of Transportation
EA Environmental Assessment
EIS Environmental Impact Statement
EOBR Electronic On-Board Recorder
FCC Federal Communications Commission
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FONSI Finding of No Significant Impact
FR Federal Register
FRA Federal Railroad Administration
MCSAC Motor Carrier Safety Advisory Committee
MCSAP Motor Carrier Safety Assistance Program
NAICS North American Industry Classification System
NHTSA National Highway Traffic Safety Administration
NPRM Notice of Proposed Rulemaking
NSC National Safety Council
NTSB National Transportation Safety Board
OOIDA Owner-Operator Independent Drivers Association
OMB Office of Management and Budget
PAR Population Attributable Risk
PHMSA Pipeline and Hazardous Materials Safety Administration
PU Power Unit
UMA United Motorcoach Association
VTTI Virginia Tech Transportation Institute

II. Background

    FMCSA--On December 21, 2010, FMCSA published a notice of proposed 
rulemaking (NPRM) in the Federal Register (75 FR 80014), proposing to 
restrict the use of hand-held mobile telephones by interstate CMV 
drivers. FMCSA received nearly 300 public comments to the NPRM. The 
Agency made changes to the proposed rule in response to these comments, 
which are described below in part IV, Discussion of the Rule.
    PHMSA--On April 29, 2011, PHMSA published a NPRM in the Federal 
Register (76 FR 23923), proposing to restrict the use of hand-held 
mobile telephones by drivers of CMVs containing a quantity of hazardous 
materials requiring placarding under part 172 of 49 CFR or any quantity 
of a select agent or toxin listed in 42 CFR part 73. PHMSA received six 
public comments, which are also described below in part IV, Discussion 
of the Rule.

A. Rationale for the Rule

    Driver distraction can be defined as the voluntary or involuntary 
diversion of attention from primary driving tasks due to an object, 
event, or person. Researchers classify distraction into several 
categories: visual (taking one's eyes off the road), manual (taking 
one's hands off the wheel), cognitive (thinking about something other 
than the road/driving), and auditory (listening to the radio or someone 
talking). Research shows that using a hand-held mobile telephone while 
driving may pose a higher safety risk than other activities (e.g., 
eating or adjusting an instrument) because it involves all four types 
of driver distraction. Both reaching for and dialing a hand-held mobile 
telephone are manual distractions and require visual distraction to 
complete the task; therefore, the driver may not be capable of safely 
operating the vehicle.
    Using a hand-held mobile telephone may reduce a driver's 
situational awareness, decision making, or performance; and it may 
result in a crash, near-crash, unintended lane departure by the driver, 
or other unsafe driving action. Indeed, research indicates that 
reaching for and dialing hand-held mobile telephones are sources of 
driver distraction that pose a specific safety risk. To address the 
risk associated with these activities, the Agencies restrict CMV 
drivers' use of hand-held mobile telephones, which includes ``using at 
least one hand to hold a mobile telephone to conduct a voice 
communication.'' As discussed below, while operating a CMV, the driver 
may only use a compliant mobile telephone, such as a hands free mobile 
phone, to conduct a voice communication.
    In an effort to understand and mitigate crashes associated with 
driver distraction, the U.S. Department of Transportation (DOT) 
conducted research concerning behavioral and vehicle safety 
countermeasures to driver distraction. Data from studies \1\ indicate 
that both reaching for and dialing a mobile telephone increase the odds 
of a CMV driver's involvement in a safety- critical event, such as a 
crash, near crash, or unintended lane departure.\2\

[[Page 75472]]

The odds of being involved in a safety-critical event are three times 
greater when the driver is reaching for an object than when the driver 
is not reaching for an object. The odds of being involved in a safety-
critical event are six times greater while the driver is dialing a cell 
phone than when the driver is not dialing a cell phone. These increases 
in risk are primarily attributable to the driver's eyes being off the 
forward roadway. Additionally, these activities have high population 
attributable risk (PAR) percentages. PAR percent is the percent of the 
drivers involved in a safety critical event that would not occur if 
performing the task while driving were eliminated. Tasks that are 
performed more frequently have a higher PAR percentage. The highest PAR 
percentage in the study was 7.6 percent--reaching for an object, 
including cell phones. Dialing a cell phone had a PAR of 2.5. Because 
of the data on distractions associated with the use of hand-held mobile 
telephones while driving \3\(i.e. reaching for and dialing a mobile 
telephone), FMCSA and PHMSA believe it is in the best interest of 
public safety to restrict a CMV driver's use of such devices.
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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. The study is in the docket at 
FMCSA-2010-0096-0016. Hickman, J., Hanowski, R. & 
Bocanegra, J. (2010), Distraction in commercial trucks and buses: 
assessing prevalence and risk in conjunction with crashes and near- 
crashes, (Document No. FMCSA-RRR-10-049) Washington, DC: Federal 
Motor Carrier Safety Administration. The study is in the docket at 
FMCSA-2010-0096-0004.
    \2\ In popular usage, mobile telephones are often referred to as 
``cell phones.'' As explained later in the final rule, a variety of 
different technologies are licensed by the Federal Communications 
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; 
thus, the rule here would apply to the range of technologies used to 
provide wireless telephone communications and the rule uses the 
broader term ``mobile telephones.'' However, some of the materials 
discussed in this preamble use the popular term ``cell phone,'' and 
the discussion continues that usage in such cases as appropriate.
    \3\ As discussed under part II.B, the legal authority supporting 
the two regulatory programs of FMCSA and PHMSA differs. FMCSA's 
authority to adopt the FMCSRs applies to CMV drivers who operate in 
interstate commerce. PHMSA's authority to adopt the HMRs extends to 
CMV drivers who operate in intrastate commerce as well.
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    The National Transportation Safety Board (NTSB) determined that one 
probable cause of a November 2004 bus crash was the use of a hands-free 
cell phone. This crash was the impetus for an NTSB investigation (NTSB/
HAR-06/04 PB2007-916201) and a subsequent recommendation to FMCSA that 
the Agency prohibit cell phone use by all passenger-carrying CMVs.\4\ 
FMCSA also received recommendations on cell phone use from its Motor 
Carrier Safety Advisory Committee (MCSAC). One of MCSAC's 
recommendations for the National Agenda for Motor Carrier Safety was 
that FMCSA initiate a rulemaking to ban a driver's use of hand-held and 
hands-free mobile telephones while operating a CMV.
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    \4\ NTSB (2006). Motorcoach collision with the Alexandria Avenue 
Bridge overpass, George Washington Memorial Parkway, Alexandria, 
Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR-06/04; 
NTIS report number PB2007-916201). Retrieved May 16, 2011, from: 
http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
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    It is not clear, however, if simply talking on a mobile telephone 
presents a significant risk while driving. For example, Olson, et al. 
(2009) detailed the risks of reaching for and dialing a phone while 
driving and found that ``talking or listening to a hands-free phone'' 
and ``talking or listening to a hand-held phone'' were relatively low-
risk activities that involved only brief periods of eyes off the 
forward roadway. FMCSA and PHMSA determine that it is the action of 
taking one's eyes off the forward roadway to reach for and dial a hand-
held mobile telephone \5\ (two high PAR activities) that has the 
greatest risk. The Agencies address those risky behaviors by 
restricting holding mobile telephones while driving a CMV.
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    \5\ The concept of ``holding'' is included in our definition of 
``use a hand-held mobile telephone.''
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    While no State has completely banned mobile telephone use, some 
States have gone further than this rule for certain categories of 
drivers. For example, 19 States and the District of Columbia prohibit 
the use of all mobile telephones while driving a school bus. 
Additionally, nine States and the District of Columbia have traffic 
laws prohibiting all motor vehicle drivers from using a hand-held 
mobile telephone while driving. Transit bus and motorcoach drivers are 
the focus of stricter mobile telephone rules in some States and local 
jurisdictions.\6\ The restriction of hand-held mobile telephone use by 
all CMV drivers is based on available data and in line with existing 
regulations that hold CMV drivers to higher standards.\7\
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    \6\ Insurance Institute for Highway Safety list of cellphone 
laws. Retrieved June 20, 2011, from http://www.iihs.org/laws/cellphonelaws.aspx.
    \7\ See 49 CFR 392.2, Applicable operating rules, which states 
that every commercial motor vehicle must be operated in accordance 
with the laws, ordinances, and regulations of the jurisdiction in 
which it is being operated. However, if a regulation of the Federal 
Motor Carrier Safety Administration imposes a higher standard of 
care than that law, ordinance or regulation, the Federal Motor 
Carrier Safety Administration regulation must be complied with.
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Distracted Driving Summit
    The information and feedback DOT received during its first 
Distracted Driving Summit, held September 30-October 1, 2009, in 
Washington, DC, highlighted the need for action and demonstrated 
widespread support for a ban against texting and mobile telephone use 
while driving. Summit participants, who included industry 
representatives, safety experts, elected officials, and law 
enforcement, gathered to address the safety risk posed by this growing 
problem across all modes of surface transportation. U.S. Transportation 
Secretary Ray LaHood stated: ``Keeping Americans safe is without 
question the Federal government's highest priority.'' The Secretary 
pledged to work with Congress to ensure that the issue of distracted 
driving would be appropriately addressed.\8\ At the conclusion of the 
Summit, the Secretary announced a series of concrete actions that the 
Obama Administration and DOT would be taking to address distracted 
driving.
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    \8\ DOT (Oct. 1, 2009). U.S. Transportation Secretary Ray LaHood 
Announces Administration-Wide Effort to Combat Distracted Driving 
(DOT 156-09). Retrieved May 16, 2011, from: http://www.dot.gov/affairs/2009/dot15609.htm.
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B. Legal Authority

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

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

    This rule is based primarily on 49 U.S.C. 31136(a)(1), which 
requires regulations that ensure that CMVs are operated safely, and 
secondarily on section 31136(a)(2), to the extent that drivers' use of 
hand-held mobile telephones impacts their ability to operate CMVs 
safely. It does not address the physical condition of drivers (49 
U.S.C. 31136(a)(3)), nor does it impact any physical effects caused by 
operating CMVs (49 U.S.C. 31136(a)(4)).
    The relevant provisions of the FMCSRs (49 CFR subtitle B, chapter 
III, subchapter B) apply to CMV drivers and employers operating CMVs 
included in

[[Page 75473]]

the statutory authority of the 1984 Act. The 1984 Act defines a CMV as 
a self-propelled or towed vehicle used on the highways to transport 
persons or property in interstate commerce; and that either: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 10,001 pounds or 
greater; (2) is designed or used to transport more than 8 passengers 
(including the driver) for compensation; (3) is designed or used to 
transport more than 15 passengers, not for compensation; or (4) is 
transporting any quantity of hazardous materials requiring placards to 
be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating 
CMVs are subject to the FMCSRs, except those who are employed by 
Federal, State, or local governments (49 U.S.C. 31132(2)).
    In addition to the statutory exemption for government employees, 
there are several regulatory exemptions in the FMCSRs that are 
authorized under the 1984 Act, including, among others, one for school 
bus operations and one for CMVs designed or used to transport between 9 
and 15 passengers (including the driver) not for direct compensation 
(49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only 
applies to interstate transportation of school children and/or school 
personnel between home and school. This particular exemption is not 
based on any statutory provisions, but is instead a discretionary rule 
promulgated by the Agency. Therefore, FMCSA has authority to modify the 
exemption. Modification of the school bus operations exemption requires 
the Agency to find that such action ``is necessary for public safety, 
considering all laws of the United States and States applicable to 
school buses'' (former 49 U.S.C. 31136(e)(1)).\9\ FMCSA also has 
authority to modify the non-statutory exemption for small, passenger-
carrying vehicles not for direct compensation, but is not required to 
comply with former 49 U.S.C. 31136(e) in modifying that exemption.\10\ 
FMCSA applies restrictions on hand-held mobile telephone use to both 
school bus operations by private operators in interstate commerce and 
small passenger-carrying vehicles not for direct compensation, although 
they will continue to be exempt from the rest of the FMCSRs. Other than 
transportation covered by statutory exemptions, FMCSA has authority to 
restrict the use of mobile telephones by drivers operating CMVs.
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    \9\ Former section 31136(e)(1) was amended by section 4007(c) of 
the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 
112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 also 
provides that the amendments made by section 4007(c) ``shall not 
apply to or otherwise affect a waiver, exemption, or pilot program 
in effect on the day before the date of enactment of [TEA-21] under 
* * * section 31136(e) of title 49, United States Code.'' (Section 
4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 U.S.C. 
31136)). The exemption for school bus operations in 49 CFR 
390.3(f)(1) became effective on November 15, 1988, and was adopted 
pursuant to section 206(f) of the 1984 Act, later codified as 
section 31136(e) (Federal Motor Carrier Safety Regulations; General, 
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law 
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by 
FMCSA affecting the school bus operations exemption would require 
the Agency to comply with former section 31136(e)(1).
    \10\ The exemption in 49 CFR 390.3(f)(6) was not adopted until 
2003, after the enactment of TEA-21, in a final rule titled, 
``Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used In Interstate Commerce'' (68 FR 
47860, Aug. 12, 2003).
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    Any violation of this restriction may result in a civil penalty 
imposed on drivers in an amount up to $2,750; a civil penalty may be 
imposed on employers, who fail to require their drivers to comply with 
FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 
386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of 
a CMV driver for violations of the Act and its regulations is also 
within the scope of the Agency's authority under the 1984 Act. Such 
disqualifications are specified by regulation for other violations (49 
CFR 391.15), and were recently adopted by the Agency in its final rule 
prohibiting texting by CMV drivers while operating in interstate 
commerce (75 FR 59118, Sept. 27, 2010; 49 CFR 392.80). In summary, both 
a restriction on the use of hand-held mobile telephones and associated 
sanctions, including civil penalties and disqualifications, are 
authorized by statute and regulation for operators of CMVs, as defined 
above, in interstate commerce, with limited exceptions. But before 
prescribing any regulations under the 1984 Act, FMCSA must consider 
their costs and benefits (49 U.S.C. 31136(c)(2)(A)). See Part V, 
Regulatory Analysis.
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 
27, 1986), which authorized creation of the CDL program, is the primary 
basis for licensing programs for certain large CMVs. There are several 
key distinctions between the authority conferred under the 1984 Act and 
that under the 1986 Act. First, the CMV for which a CDL is required is 
defined under the 1986 Act, in part, as a motor vehicle operating ``in 
commerce,'' a term separately defined to cover broadly both interstate 
commerce and operations that ``affect'' interstate commerce (49 U.S.C. 
31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle 
used in commerce to transport passengers or property that: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 26,001 pounds or 
greater; (2) is designed to transport 16 or more passengers including 
the driver; or (3) is used to transport certain quantities of 
``hazardous materials,'' as defined in 49 CFR 383.5 (49 U.S.C. 
31301(4)). In addition, a provision in the FMCSRs implementing the 1986 
Act recognizes that all school bus drivers (whether government 
employees or not) and other government employees operating vehicles 
requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or 
designed to transport 16 or more passengers) are subject to the CDL 
standards set forth in 49 CFR 383.3(b).
    There are several statutory and regulatory exceptions from the CDL 
requirements, which include the following individuals: military service 
members who operate a CMV for military purposes (a mandatory exemption 
for the States to follow) (49 CFR 383.3(c)); certain farmers; 
firefighters; CMV drivers employed by a unit of local government for 
the purpose of snow/ice removal; and persons operating a CMV for 
emergency response activities (all of which are permissive exemptions 
for the States to implement at their discretion) (49 CFR 383.3(d)). 
States may also issue certain restricted CDLs to other categories of 
drivers under 49 CFR 383.3(e)-(g). Drivers with restricted CDLs based 
on State programs may still be covered by a disqualification under the 
1986 Act arising from the use of hand-held mobile telephones while 
operating CMVs.
    The 1986 Act does not expressly authorize the Agency to adopt 
regulations governing the safety of CMVs operated by drivers required 
to obtain a CDL. Most of these drivers (those involved in interstate 
trade, traffic, or transportation) are subject to safety regulations 
under the 1984 Act, as described above. The 1986 Act, however, does 
authorize disqualification of CDL drivers by the Secretary. It contains 
specific authority to disqualify CDL drivers for various types of 
offenses, whether those offenses occur in interstate or intrastate 
commerce. This authority exists even if drivers are operating a CMV 
illegally because they did not obtain a CDL.
    In general, the 1986 Act explicitly identifies several ``serious 
traffic violations'' as grounds for disqualification (49 U.S.C. 
31301(12) and 31310). In addition to the specifically enumerated 
``serious traffic violations,'' the 1986 Act provides related authority 
that allows FMCSA to

[[Page 75474]]

designate additional serious traffic violations by rulemaking if the 
underlying offense is based on the CDL driver committing a violation of 
a ``State or local law on motor vehicle traffic control'' (49 U.S.C. 
31301(12)(G)). The FMCSRs state, however, that unless and until a CDL 
driver is convicted of the requisite number of specified offenses 
within a certain time frame (described below), the required 
disqualification may not be applied (49 CFR 383.5 (defining 
``conviction'' and ``serious traffic violation'') and 383.51(c)).
    Under the statute, a driver who commits two serious traffic 
violations in a 3-year period while operating a CMV must be 
disqualified from operating a CMV that requires a CDL for at least 60 
days (49 U.S.C. 31310(e)(1)). A driver who commits three or more 
serious traffic violations in a 3-year period while operating a CMV 
must be disqualified from operating a CMV that requires a CDL for at 
least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile 
telephones results in distracted driving and increases the risk of CMV 
crashes, fatalities, and injuries, FMCSA is now requiring that 
violations by a CDL driver of a State or local law or ordinance on 
motor vehicle traffic control that restricts the use of such mobile 
telephones while driving CMVs should result in a disqualification under 
this provision.
    FMCSA is authorized to carry out these statutory provisions by 
delegation from the Secretary as provided in 49 CFR 1.73(e) and (g).
PHMSA
    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. This final rule is being issued 
under the authority in 49 CFR part 106.

III. Discussion of Comments

    FMCSA received approximately 300 comments in response to the NPRM 
(75 FR 80014, Dec. 21, 2010). PHMSA received 6 comments in response to 
its NPRM (76 FR 23923, April 29, 2011). The commenters included 
associations representing trucking companies, motorcoach companies, 
school bus operations, public transportation, highway safety, utility 
providers, waste haulers, concrete manufacturers, and food suppliers. 
In addition, the agencies received comments from the legal and law 
enforcement communities, as well as representatives of State 
governments and driver unions. Commenters from the general public 
included motorists concerned about their safety when driving near CMV 
drivers who are using mobile telephones.
    Overall, most commenters supported the proposal to restrict hand-
held mobile telephone use because of the potential safety benefits for 
all vehicle and pedestrian traffic sharing the highway with CMVs. A few 
commenters stated that the proposal did not go far enough and that all 
mobile telephone use by CMV drivers should be prohibited. A few 
commenters opposed any restriction on the use of mobile phones. Below 
we summarize the comments submitted to FMCSA's NPRM at Docket FMSCA-
2010-0096, followed by a summary of the comments submitted to PHMSA's 
NPRM at Docket PHMSA-2010-0227.

A. FMCSA Comments

Hand-Held Restriction
    Some commenters believed that restricting hand-held mobile 
telephone use by drivers operating CMVs in interstate commerce would 
impede business and require many more stops for drivers.
    FMCSA Response. Because drivers have other options available that 
do not require pulling over and stopping, FMCSA disagrees that this 
rule would impede business. Stops can be avoided by using technological 
solutions such as a hands-free mobile telephone with a speaker phone 
function or a wired or wireless earphone. Most mobile telephones have a 
speaker phone function and one-touch dialing and thus would be 
compliant with this rule. Additionally, the Agency estimated the 
minimum cost of upgrading from a non-compliant mobile telephone to a 
compliant one to be as low as $29.99.\11\ Therefore, abiding by the 
final rule will not create a burden on, or hardship for, CMV drivers.
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    \11\ Upgrading is defined as the purchase of a mobile telephone 
that has voice dialing and speaker phone capabilities. The average 
cost of the least costly compliant phone is $29.99 (with a 2-year 
contract). See the Regulatory Evaluation accompanying this final 
rule for a full explanation of this cost.
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Complete Mobile Telephone Ban
    A few commenters, including First Group America \12\ and the 
Advocates for Highway and Auto Safety (Advocates), thought the Agency 
should ban both hand-held and hands-free mobile telephone use.
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    \12\ A North American surface transportation provider that 
includes school bus and transit services, as well as Greyhound 
Lines, Inc.
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    FMCSA Response. The Agency does not believe sufficient data exist 
to justify a ban of both hand-held and hands-free use of mobile 
telephones by drivers operating CMVs in interstate commerce. Based on 
available studies, FMCSA proposed restricting only hand-held mobile 
telephone use by CMV drivers. While some driving simulator-based 
studies found conversation to be risky, the Olson, et al. (2009) and 
Hickman, et al. (2010) studies found that ``talking or listening to a 
hands-free phone'' and ``talking or listening to a hand-held phone'' 
were relatively low-risk activities and had only brief periods when the 
drivers' eyes were off the forward roadway. It is not clear from 
available studies if simply talking on a mobile telephone while driving 
presents a significant risk. The use of a cell phone, however, involves 
a variety of sub-tasks, some increasing and some decreasing the odds of 
involvement in a safety-critical event. The Hickman, et al. (2010) 
study showed that reaching for a cell phone while driving increased 
these odds by 3.7 times. Dialing a cell phone while driving increased 
the odds by 3.5 times. Reaching for a headset/earpiece while driving 
increased the odds by 3.4 times. Talking or listening on a hands-free 
cell phone while driving decreased the odds by .7 times (i.e., 
protective effect). Talking/listening on a hand-held cell phone (odds 
ratios = .9) had a non-significant odds ratio (i.e., no increase or 
decrease in risk).
    Although talking on the cell phone did not show an increased risk, 
a driver must take several risk-increasing steps, such as reaching for 
and dialing the cell phone, in order to use the electronic device for 
conversation. Based on these studies, FMCSA determined that it is the 
action of taking one's eyes off the

[[Page 75475]]

forward roadway to reach for and dial the mobile telephone that is the 
highly risky activity. Therefore, because the reaching and dialing 
tasks are necessary to use a hand-held mobile telephone, the Agency 
will only restrict hand-held mobile telephone use by CMV drivers while 
operating in interstate commerce in this final rule. Reaching for and 
dialing a mobile telephone are both visual and manual distractions and 
reduce a driver's situational awareness; adversely impact decision 
making or driving performance; and result in an increased risk of a 
crash, near-crash, unintended lane departure by the driver, or other 
unsafe driving action.\13\ To address this risk, the Agency also 
restricts holding mobile telephones while driving a CMV.
---------------------------------------------------------------------------

    \13\ For further discussion, see the Research section of the 
NPRM (75 FR 80020).
---------------------------------------------------------------------------

    FMCSA specifically asked commenters whether some CMV drivers (for 
example, drivers of passenger-carrying vehicles or those carrying 
hazardous materials) should be more restricted in their mobile 
telephone use than other CMV drivers. The Agency received a few 
responses on this issue and those commenters believed FMCSA should 
treat all CMV drivers equally.
Two-Way Radios and Push-to-Talk
    Many commenters were concerned because the proposed rule prohibited 
the push-to-talk function of a mobile telephone. Some drivers use this 
function in lieu of a two-way radio. Commenters argued that the push-
to-talk function is no different than that of a two-way or CB radio, 
neither of which were restricted by the proposed rule. One commenter 
stated that some school bus drivers need to use the push-to-talk 
function in lieu of actual two-way radio systems because it is their 
only means of communication. On the other hand, the National School 
Transportation Association commented that it supports allowing two-way 
radios, instead of the push-to-talk function, as two-way radios are 
commonly used in school bus operations.
    Some specialized haulers commented that the Agency should provide a 
push-to-talk exception for specialized transports that use escorts in 
transporting certain loads (such as high weight or oversized items, 
often at low speed) because frequent communication is necessary between 
trucks and escort vehicles. The Maryland Motor Truck Association 
pointed out that Maryland passed a law on mobile telephone use with a 
push-to-talk exception.
    FMCSA Response. In the NPRM, the Agency defined a mobile telephone 
as ``a mobile communication device that falls under or uses any 
commercial mobile radio service, as defined in regulations of the 
Federal Communications Commission (FCC), 47 CFR 20.3.'' FMCSA used the 
FCC's definition for ``mobile telephone'' in order to ensure 
consistency between the terms used in the FCC and FMCSA rules and to 
address emerging technologies. Because the push-to talk features use 
commercial mobile radio services to transmit and receive voice 
communications, the device is a mobile telephone; and it also requires 
the driver or user to hold it. Therefore, its use while driving a CMV 
is the same as that of a hand-held mobile telephone and is prohibited.
    The push-to-talk feature of a mobile telephone can be replaced with 
the use of a compliant mobile telephone, two-way radios, or walkie-
talkies for the short periods of time when communication is critical 
for utility providers, school bus operations, or specialty haulers. The 
use of CB and two-way radios and other electronic devices by CMV 
drivers for other functions is outside the scope of consideration in 
this rulemaking.
Dialing/Button Touches
    A number of commenters objected to the way the Agency used the term 
``dial,'' and offered alternative suggestions. Werner Enterprises 
stated that the word ``dial'' used in the definition was archaic, as it 
could include voice or speed dialing as it is currently written. Some 
commenters said the Agency should differentiate between dialing and a 
single button push to initiate or answer a call, either on the phone or 
the earpiece, or to enable voice-activated dialing. ATA commented that 
dialing should be defined as entering a 7 to 10 digit phone number 
because the rule should allow the driver to use 1 or 2 button pushes to 
initiate a conversation. Dart Transit stated that consideration should 
be given to allowing limited key strokes (fewer than four over a 
predetermined time frame) for technological interaction. The Maryland 
Motor Truck Association said that the current Maryland Motor Vehicle 
Law allows a driver to ``initiate or terminate a wireless telephone 
call or to turn on or turn off the hand-held telephone.''
    FMCSA Response. In the NPRM, the Agency used the word dial in a 
general sense to indicate the placement of a call. Although the word 
dial originated with rotary dial phones, FMCSA acknowledges there are 
very few phones that still actually have such a feature. Such devices 
generally do not work on today's telecommunications network because 
they do not generate a digital tone for each number. The term ``dial'' 
is commonly used to mean ``make a telephone call,'' whether the task is 
accomplished by entering a 7 to 11 digit phone number or by voice 
activation or speed dialing. The Agency does not believe it is 
necessary to introduce another term or create a new term in place of 
the word ``dial.'' Thus, FMCSA will not use alternative terminology 
references for this definition.
    If the Agency defined dial in a manner that permitted 3, 4, or even 
10 touches or button presses, enforcement would be difficult. The 
amount of time the driver has his or her eyes off of the forward 
roadway is the fundamental issue, and the time required to identify and 
press any given number of buttons would vary from driver to driver. 
FMCSA, however, has added language to the regulatory text that allows 
the driver only minimal contact with the mobile telephone in order to 
conduct voice communication. A driver can initiate, answer, or 
terminate a call by touching a single button on a mobile telephone or 
on a headset. This action does not require the driver to take his or 
her eyes off of the forward roadway for an extended period--comparable 
to using vehicle controls or instrument panel functions, such as the 
radio or climate control system.
Using a Hand-Held Mobile Telephone/Clarifying Reaching
    Many commenters requested that the Agency clarify the term 
``reaching.'' The Owner- Operator Independent Drivers Association 
(OOIDA) noted that truck drivers safely reach for and press buttons or 
turn knobs to operate various equipment, including windshield wipers, 
temperature controls, radios, and CD players. The Snack Food 
Association, Southern Company, and the State of New York Department of 
Motor Vehicles commented that prohibiting reaching was ``too 
proscriptive'' or broad. The Alliance of Automobile Manufacturers said 
that this ``overly prescriptive'' regulatory wording would inhibit 
development of innovative technologies for the commercial vehicle 
fleet. One commenter suggested that drivers should be fined for holding 
the phone to their ear in lieu of establishing the prohibition based on 
the reaching task because it would be difficult to differentiate 
between reaching for other items in the cab and reaching for a mobile 
telephone. The State of New York Department of Motor Vehicles noted 
that the New York State Vehicle Traffic Law states that ``using (a 
phone)

[[Page 75476]]

shall mean holding a mobile telephone to, or in the immediate proximity 
of, the user's ear.'' The National Rural Electric Cooperative 
Association suggested allowing negligible movements to activate a 
hands-free mobile telephone. ATA recommended educating drivers to place 
hands-free devices within close proximity. A few commenters asked, why, 
if the radio, CB, and phone are all located within an easy arm's reach, 
the Agency is proposing to restrict only the use of hand-held mobile 
telephones.
    FMCSA Response. FMCSA acknowledges commenters' concerns and revises 
the regulatory text to allow drivers to reach for the compliant mobile 
telephone (i.e., hands-free) provided the device is within the driver's 
reach while he or she is in the normal seated position, with the seat 
belt fastened. This concept is a familiar one and found elsewhere in 
the FMCSRs. See, for example, 49 CFR 393.51 (certain CMVs must have an 
air pressure gauge ``visible to a person seated in the normal driving 
position.''). In addition, the Agency modeled its language on existing 
National Highway Traffic Safety Administration (NHTSA) rules. The NHTSA 
rules regarding the location of controls (49 CFR 571.101, S5.1.1) 
require certain controls, such as the hazard warning signal, windshield 
wiper, or climate control system, to be located so that they are 
operable by the driver when, ``[t]he driver is restrained by the seat 
belts installed in accordance with 49 CFR 571.208 (Standard No. 208; 
Occupant crash protection) and adjusted in accordance with the vehicle 
manufacturers' instructions'' (49 CFR 571.101, S5.6.2). These changes 
are reflected in the amended definition of ``use a hand-held mobile 
telephone'' in Sec.  390.5.
    If a compliant mobile telephone is close to the driver and operable 
while the driver is restrained by properly installed and adjusted seat 
belts, then the driver would not be considered to be reaching. Reaching 
for any mobile telephone on the passenger seat, under the driver's 
seat, or into the sleeper berth are not acceptable actions. To avoid 
committing a violation of this rule, the driver could use either a 
hands-free earpiece or the speaker function of a mobile telephone that 
is located close to the driver. Therefore, in order to comply with this 
rule, a driver must have his or her compliant mobile telephone located 
where the driver is able to initiate, answer, or terminate a call by 
touching a single button, for example, on the compliant mobile 
telephone or on a headset, when the driver is in the seated driving 
position and properly restrained by a seat belt.
    While several commenters compared the use of hand-held mobile 
telephones to other electronic devices, arguing either for more 
comprehensive restrictions or against the regulation of hand-held 
mobile telephones, the use of other electronic devices by CMV drivers 
is outside the scope of this rulemaking.
Mounted or Stationary Mobile Telephones
    Some drivers noted that they keep their phones in a bracket that 
allows them to answer and initiate calls without holding the mobile 
telephone. Some commenters questioned whether such mounted phones are 
acceptable.
    FMCSA Response. Although the Agency did not address the option of 
mounting the mobile telephone in the NPRM, a compliant mobile telephone 
mounted close to the driver is an acceptable option, but it is not, 
however, required in order to be in compliance with the final rule. If 
a compliant mobile telephone is operated in accordance with this rule, 
mounted phones are no more distracting than operating the radio, 
climate control system, or other dash-mounted accessory in the vehicle.
Use of the Mobile Telephone While Idling
    Some commenters, including the National Ready Mix Concrete 
Association, asked whether phone use would be allowed when the vehicle 
was parked, but with the engine running.
    FMCSA Response. FMCSA removed the language ``with or without the 
motor running.'' Now the Agency states that ``driving'' means operating 
a commercial motor vehicle on a highway, including while temporarily 
stationary because of traffic, a traffic control device, or other 
momentary delays. Driving does not include operating a commercial motor 
vehicle 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. The Agency also revised the regulatory text to 
clarify that the restriction against using a hand-held mobile telephone 
applies when a CMV is operated ``on a highway.'' See 49 CFR 390.5 
(definition of highway). The Agency believes this clarification 
addresses emerging technologies such as hybrid vehicles, which are 
operated at times without the motor running. Therefore, as long the 
``driver has moved the vehicle to the side of, or off, a highway and 
has halted the vehicle in a location where it can safely remain 
stationary,'' use of the mobile telephone is allowed. Our new 
definition for ``driving'' is addressed in Sec.  383.51 and explained 
in Part IV, Discussion of the Rule.
Uses of the Mobile Telephone for Other Than Voice Communication
    Some commenters said they use their mobile telephones to enter the 
vehicle's odometer reading in the phone when crossing State lines and 
press the send button to create a time stamp. The American Moving and 
Storage Association (AMSA) and The Alliance of Automobile Manufacturers 
were concerned that the synchronizing of mobile telephones with other 
electronic devices would be affected by this rulemaking. Specifically, 
Alliance said that the definition of ``texting'' in Sec.  383.5 should 
not be revised by removing the dialing exception in paragraph (2)(i). 
One commenter asked if text-to-voice and voice-to-text functions could 
be used under this rule.
    FMCSA Response. Entering the vehicle odometer reading into a mobile 
telephone qualifies as texting (49 CFR 390.5) and, therefore, is 
already prohibited while driving (75 FR 59118, Sept. 27, 2010). 
Similarly, synchronizing EOBRs or other technologies with mobile 
telephones would require multiple steps that would result in a driver's 
eyes off forward roadway. This action should be accomplished when the 
vehicle is not moving, while safely parked off of the highway. If 
voice-to-text and text-to-voice functions can be initiated with a 
single button touch, such as is used to activate voice dialing, they 
are allowed.
    In the definition of ``texting'' in Sec. Sec.  383.5 and 390.5, the 
Agency included the exception for dialing in the texting rule to allow 
mobile telephone use until the time the Agency decided to address it 
through separate rulemaking concerning mobile telephones. Removing the 
dialing option in this rule limits the operator's ability to engage in 
unsafe, eyes-off-forward-roadway behavior.
    The pairing of mobile telephones with in-vehicle technologies may 
be a violation of other restrictions or regulations. Regardless, the 
Agency believes a responsible driver would pair or link a mobile 
telephone to other technologies when the vehicle is stationary and not 
while he or she is operating a CMV on our Nation's highways.
Other Distractions
    Many commenters, including OOIDA, questioned why other risky 
activities that may cause driver distraction were not addressed in this 
rule. Commenters asked if there would be future prohibitions on 
activities like reading,

[[Page 75477]]

operating radios and CBs, or eating. Some asked that global positioning 
systems (GPS) and dispatching devices be included in the prohibition. 
The National School Transportation Association cited its recommended 
policy that ``Drivers may not use a cell phone or other personal 
portable device while operating a school bus or any other vehicle 
transporting students * * *.'' Advocates believed that the Agency 
should extend the proposal to include other types of electronic devices 
and technologies that cause driver distraction; otherwise Advocates 
argued that the Agency's action is arbitrary and capricious.
    FMCSA Response. Based on the data from the Olson, et al. (2009) 
study, the Agency is giving priority to addressing certain risky tasks. 
The Agency prohibited texting because it is associated with relatively 
high odds ratios and eyes-off-forward-roadway time. Similarly, both 
reaching for an object in the vehicle (such as a mobile telephone) and 
dialing a mobile telephone have significantly high odds ratios. Odds 
ratios are the odds of being involved in a safety critical event when 
performing a task compared to not performing that task. Although the OR 
for ``reach for an object in vehicle,'' is lower than the OR for 
``dialing,'' the PAR for ``reach for an object in vehicle'' is the 
highest PAR in the study. The restriction of hand-held mobile telephone 
use, which the Agency is defining to include reaching for and dialing 
tasks, is a logical next step for the Agency in its efforts to prevent 
distracted driving because mobile telephones are increasingly popular. 
To address these risky activities, the Agency restricts the use of 
hand-held mobile telephones. FMCSA is considering an advance notice of 
proposed rulemaking to seek public comment on the extent to which 
regulatory action is needed to address other in-cab electronic devices 
that may result in distracted driving.
Constitutional Concerns
    A few commenters raised constitutional concerns, namely whether the 
rule runs afoul of the Fourth or Fourteenth Amendment of the United 
States Constitution. Specifically, some commenters, including OOIDA, 
argued that FMCSA violated the Fourth Amendment because it failed to 
include an enforcement plan and procedural guidelines for its proposed 
cell phone rule. A professional driver argued that a regulation that 
restricts the use of hand-held cell phone devices by CMV drivers in 
interstate commerce violates the Equal Protection Clause of the 
Fourteenth Amendment because CMV drivers involved in intrastate 
commerce are not covered by the same proposal. In the alternative, the 
commenter requested that the U.S. Department of State engage in treaty 
negotiations with foreign nations to impose similar restrictions and 
penalties on them when operating CMVs in the United States.
    FMCSA Response. The Fourth Amendment concerns raised by OOIDA are 
without merit. The regulation of the use of a mobile phone while 
operating a CMV does not constitute a ``search'' or ``seizure'' to 
which the Fourth Amendment applies. A driver could not successfully 
claim that observance of this conduct would violate a reasonable 
expectation of privacy. Cf United States v.  Knotts, 460 U.S. 276 
(1983). Nothing in the rule authorizes enforcement officers to require 
a driver to make a mobile telephone available so that the officer can 
review call history for purposes of enforcing this rule. It is the 
Agency's view that the rule may be enforced without raising Fourth 
Amendment concerns. Assuming that a Fourth Amendment argument might be 
raised in connection with the enforcement of the rule, given the 
government's interest in safety on public highways and the closely 
regulated nature of the commercial motor vehicle industry, it is 
FMCSA's view that a Fourth Amendment challenge is unlikely to be 
successful. Cf. New York v. Burger, 482 U.S. 691 (1987). In any event, 
the acquisition of evidence in a particular case will be governed by 
the principles established in judicial precedents interpreting and 
applying the Fourth Amendment and relevant statutory provisions, such 
as the Electronic Communications Privacy Act of 1986, Pub. L. 99-508, 
100 Stat. 1848 (1986).
    The commenter's Fourteenth Amendment argument is misplaced for 
several reasons. First, a classification distinguishing between 
interstate and intrastate commerce would be evaluated under a rational 
relationship test--a minimal level of scrutiny employed in equal 
protection analysis.
    Second, as noted above, both the restriction on the use of hand-
held mobile telephones and associated sanctions, including civil 
penalties and disqualifications, on operators of CMVs in interstate 
commerce are authorized by statute. While the commenter argued that 
FMCSA is ``segregating and punishing'' a certain group of people, 
Congress exercised its commerce clause powers under the Constitution in 
authorizing the Agency to regulate the safety of persons operating CMVs 
in interstate and foreign transportation. Although Congress could have 
gone further and authorized FMCSA to regulate the safety of 
transportation that ``affected'' interstate commerce (generally all 
intrastate transportation), it has made a rational decision not to give 
FMCSA that authority, though the Agency's MCSAP funding provides the 
FMCSA leverage to bring the States into conformity with FMCSA safety 
regulations. Clearly, Congress had a rational basis in the manner it 
prescribed the Agency's regulatory authority. Thus, FMCSA believes the 
Fourteenth Amendment argument is without merit.
    In response to the commenter's alternative treaty negotiations 
argument, the Agency notes that Congress has given FMCSA authority to 
regulate the safety of foreign nationals operating CMVs within the 
territorial limits of the United States. See 49 U.S.C. 31132. The 
definition of ``interstate commerce'' in that statute covers 
transportation in the United States that is between a place in a State 
and ``a place outside the United States'' (49 U.S.C. 31132(4)). 
Accordingly, the rule would apply to CMV drivers from other countries 
who drive CMVs in the United States.
Fines/Driver Disqualification
    Some commenters believed the civil penalties were too high. The 
United Transportation Union said there should be an appeals process for 
disqualifications.
    FMCSA Response. The Agency rejects the view that the maximum 
penalties are too harsh. The applicable civil penalties for violations 
of this rule are provided by Congress and are consistent with current 
maximum penalties that can be assessed against an employer and driver 
for the violation of similar safety regulations. See 49 U.S.C. 
521(b)(2); 49 CFR 386, Appendix B, paragraphs (a)(3) and (4). The 
actual penalty that might result in a proceeding under 49 CFR part 386 
would take into account mitigating factors enumerated in 49 CFR 386.81. 
Driver and motor carrier fines ($2,750 and $11,000, respectively) in 
the rule are the recommended maximum that the Agency can assess on any 
violator. States, however, may choose to set the amount of a fine at or 
below those levels. Additionally, as noted above, civil penalties 
imposed under FMCSA regulations may be adjusted based on the 
circumstances of the violation.
    In response to the United Transportation Union, FMCSA currently has 
an appeals process in place for disqualifications. If a driver obtains 
a ``letter of disqualification'' for violating the hand-held mobile 
telephone

[[Page 75478]]

restriction, he or she can either accept it or petition for review 
within 60 days after service of such action pursuant to 49 CFR 386.13. 
The petition must be submitted to FMCSA and must contain the following: 
(1) Identification of what action the petitioner wants overturned; (2) 
copies of all evidence upon which petitioner relies, in the form set 
out in Sec.  386.49; (3) all legal and other arguments that the 
petitioner wishes to make in support of his/her position; (4) a request 
for oral hearing, if one is desired, which must set forth material 
factual issues believed to be in dispute; (5) certification that the 
reply has been filed in accordance with Sec.  386.31; and (6) any other 
pertinent material.
Employer Liability
    Some commenters stated that employers should not be held 
responsible for a driver's use of a hand-held mobile telephone. Others 
suggested that employers should be prohibited from calling drivers 
during work hours. Some commenters said that employers would be fined, 
instead of drivers, to increase revenue from a violation. The Snack 
Food Association commented that employer sanctions are inappropriate 
where an employer has a policy banning hand-held phone use already in 
place. ATA said that a motor carrier should not be deemed to have 
allowed hand-held phone use if they have taken good faith steps to 
ensure compliance. ATA, AMSA, and other commenters suggested the Agency 
add the word ``knowingly'' to Sec.  392.82 so that it would read as 
follows: ``No motor carrier shall knowingly allow or require its 
drivers to use a hand-held mobile telephone while driving a CMV.''
    FMCSA Response. FMCSA holds motor carriers accountable for the 
actions of their employees or drivers, especially when the employer 
allows or requires the prohibited action. In other words, the employer 
will generally be held accountable if the employee was doing his or her 
job, carrying out company business, or otherwise acting on the 
employer's behalf when the violation occurred.
    FMCSA acknowledges the concern raised by industry representatives 
addressing employer liability for a driver's improper use of a hand-
held mobile telephone. We recognize that there will be cases when a CMV 
driver uses a mobile telephone in violation of the employer's policy. 
The Agency, however, disagrees with the suggestion by some commenters 
that the word ``knowingly'' be added to the restriction in Sec.  
392.82(a)(2) that states ``no motor carrier shall allow or require its 
drivers to use a hand-held mobile telephone while driving a CMV.'' As 
noted above, a motor carrier should put in place or have company 
policies or practices that make it clear that a carrier does not allow 
or require hand-held mobile phone use while driving. A motor carrier is 
responsible for the actions of its drivers.
    FMCSA reiterates that motor carriers and employers that allow or 
require their drivers to use a hand-held mobile telephone will be 
subject to civil penalties of up to $11,000, as already provided in 49 
U.S.C. 521(b)(2)(A), 49 CFR 386.81, and Appendix B to 49 CFR part 386, 
paragraph (a)(3). A motor carrier must require drivers to observe a 
duty or prohibition imposed under the FMCSRs. See 49 CFR 390.11.
Enforcement
    Several commenters said that enforcement will be difficult and 
highlighted the lack of enforcement of existing distracted driving 
laws. Several commenters worried about the mechanics of enforcement. 
Commenters' concerns related to challenges in law enforcement officers' 
might have in observing a CMV driver holding the mobile telephone, 
unless the driver were holding it to his or her ear. AMSA believed that 
the officer should be required to actually see the driver holding and/
or dialing the phone before taking enforcement action.
    FMCSA Response. FMCSA does not believe it is necessary to prescribe 
enforcement procedures and methodology in the rulemaking. The Agency 
and its State partners, through CVSA and its Training Committee, will 
develop the procedures and methods to ensure uniform application of the 
rule. Questions about specific enforcement procedures are not a basis 
for not taking action to restrict CMV drivers from using hand-held 
mobile telephones while operating in interstate commerce. The Agency 
notes, however, that enforcement programs can be successful. Since our 
texting rule was implemented, FMCSA has had over 300 violations at 
roadside.
    Additionally, NHTSA, as part of its continuing effort to combat 
distracted driving, sponsored a pilot program in Hartford, Connecticut, 
and Syracuse, New York, which tested whether increased law enforcement 
efforts lead distracted drivers to put down their cell phones and focus 
on the road. During a year long pilot program in Hartford, police cited 
9,500 drivers for talking on mobile telephones or texting while 
driving. Similar results were noted in Syracuse. Enforcement of this 
rule will involve a period of familiarization with the requirements for 
both Federal and State enforcement agencies. Therefore, FMCSA believes 
enforcement officials will be prepared to enforce the rule and be 
mindful of the factors needed to bring forward a case that would 
withstand legal challenges.
Research Methodology
    Based on the available research, the United Motorcoach Association 
(UMA) felt that the Agency underestimated cognitive distraction and 
urged FMCSA to continue to study this issue. Advocates, NTSB, and a few 
other commenters suggested that research supports extending the 
Agency's prohibition to the hands-free operation of mobile telephones, 
as well as other electronic devices and technologies capable of causing 
distraction while driving. Advocates commented that the data in the 
Hickman, et al. (2010) study came from more safety conscious fleets 
during a period of elevated focus on the issue of distracted driving. 
They, therefore, felt that this data should be viewed cautiously since 
it likely represents a ``best case scenario'' population for study of 
distracted driving and may not accurately reflect real-world experience 
among the majority of commercial drivers who engage in hands-free 
mobile telephone conversations.
    FMCSA Response. The Agency reviewed research on cognitive 
distraction and determined that existing research results vary. FMCSA 
did not receive any significant new research reports from the 
commenters that would influence our decision on this rule.
    Hickman, et al. (2010) is the largest and most relevant study on 
distraction related to CMV drivers. In response to Advocates' comment 
on whether the fleets in the study represent a ``best case scenario'' 
population, the safety consciousness of a fleet could certainly 
influence the prevalence of tertiary tasks, but it would not influence 
the risk in performing these tasks while driving. Thus, we disagree 
with Advocates. The results of the study represent an accurate 
assessment of the risks associated with distracted driving regardless 
of the population used.
Emergencies
    Some commenters thought that the NPRM prohibited CMV drivers from 
making emergency calls. Commenters believed that calls could not be 
made to law enforcement to report vehicle accidents, drunk drivers, or 
other roadside emergencies.
    UMA noted that its members have largely responded to its advisory 
on the inherent risks of using cellular phones, and have developed and 
enforced

[[Page 75479]]

policies that direct drivers to restrict their use of cellular phones 
to emergency and security purposes only.
    FMCSA Response. The Agency agrees with the UMA and the many 
companies whose cell-phone policies continue to allow the use of mobile 
telephones to contact law enforcement in cases of emergency and for 
security purposes. The Agency, however, did not propose to prohibit CMV 
drivers from placing emergency calls. In the NPRM, the Agency said in 
Sec.  392.82: ``Emergencies. Using a hand-held mobile telephone is 
permissible by drivers of a CMV when necessary to communicate with law 
enforcement officials or other emergency services'' (75 FR 80033, Dec. 
21, 2010). This final rule allows a CMV driver to use either a hand-
held or hands-free mobile telephone to contact law enforcement or other 
emergency services for such purposes as reporting an accident or drunk 
driver.
Exceptions to the Hand-Held Ban
    Some industries requested that their drivers be given a blanket 
exception to the restriction on using hand-held mobile telephones while 
operating CMVs in interstate commerce. For example, the National Rural 
Electric Cooperative Association, Southern Company, and other utility 
companies requested that their business operations be classified as 
emergency services. Specialty and heavyweight hauling operations, 
utility companies, and associations representing them also requested 
exemptions for their respective industries. The Minnesota Department of 
Transportation requested an exemption for their non-urban area formula 
transportation providers to allow hand-held mobile telephone use when 
communicating with other vehicle operators nearby, as well as with 
dispatch services.
    FMCSA Response. Previous Agency decisions support the premise that 
the CMV operations of utility companies cannot be classified as 
emergency services.\14\ They are subject to varying degrees of 
regulation by Federal, State, and local authorities and do not 
specifically deal with the protection of life and property. Public 
utility employees operate large or hazardous- material-laden vehicles 
both day and night throughout the year, sometimes under the most 
adverse weather conditions. During declarations of emergency, drivers 
may be eligible for exemptions from some regulations under 390.23.
---------------------------------------------------------------------------

    \14\ See the Federal Highway Administration's Notice of Final 
Disposition entitled, ``Commercial Driver's License Program; 
Waivers; Final Disposition,'' at 53 FR 37313, Sept. 26, 1988.
---------------------------------------------------------------------------

    Regarding the concerns of the Minnesota non-urban formula 
transportation program (which receives financial assistance under the 
Federal Transit Administration's formula grant program for other than 
urbanized areas in accordance with 49 U.S.C. 5311), if such service 
providers are State-owned, then the Federal hand-held mobile telephone 
restriction will not apply to them; but if the providers are contracted 
private transportation companies, they will be covered by the 
restriction. Regardless of whether operators are government-owned or 
private, the operators may use hands-free mobile telephone 
communication, including speakerphone or earphone functions, and still 
abide by the restriction on use of a hand-held phone while operating 
CMVs.
    Accordingly, FMCSA is unable to conclude that granting an exception 
or waiver to these groups is necessary at this time.
Outreach
    The Agency received several comments regarding outreach. Commenters 
suggested that early driver education is needed because young CMV 
drivers are operating their vehicles and are using their phones as if 
they were driving a car (e.g., texting, dialing, etc.). Therefore, 
commenters recommended that the Agency require CDL schools to educate 
students on the dangers of cell phone use while driving CMVs.
    FMCSA Response. The Agency agrees that enforcement and outreach 
efforts are essential to increase public awareness. Previous DOT 
campaigns, such as those addressing safety belt use and drinking and 
driving, have proven to reduce injuries and fatalities. DOT already has 
in place distracted driving campaigns to educate all vehicle drivers on 
distracted driving. The Agency believes that many of these efforts are 
reaching the CMV driver population, both experienced and new drivers. 
Platforms for sharing distracted driving information include the Web 
site, http://www.Distraction.gov, as well as outreach on radio and 
television, which have generally reduced unsafe driver behaviors and 
boosted compliance awareness.
    For more information on research, outreach, and education, the 
reader may reference NHTSA's Driver Distraction Program. This program 
is a plan to communicate NHTSA's priorities to the public with regard 
to driver distraction safety challenges, focusing on the long- term 
goal of eliminating crashes that are attributable to distraction. The 
complete overview can be found at http://www.distraction.gov/files/dot/6835_DriverDistractionPlan_4-14_v6_tag.pdf. The Secretary considers 
preventing distracted driving a priority for the Department and has 
promoted funding for education, awareness, and outreach on this 
initiative.
Non-CMV Drivers
    Many commenters suggested that a mobile telephone prohibition be 
applied to all vehicle drivers, including passenger car drivers, law 
enforcement, hazardous materials transporters, and government 
employees, among them publicly-employed school bus drivers.
    FMCSA Response. The Agency does not have statutory authority to 
regulate non-CMV drivers. As noted above, other than transportation 
covered by statutory exemptions, FMCSA has authority to restrict the 
use of mobile telephones by drivers operating CMVs in interstate 
commerce.
Hand Off the Wheel
    The New England Fuel Institute, Werner Enterprises, the Alliance of 
Automobile Manufacturers, and others commented on the language used in 
the NPRM preamble that stated: ``The Agency is proposing to allow 
hands-free mobile telephone use as long as it does not require the 
driver to reach for, dial, or hold a mobile telephone, taking the 
driver's eyes off the forward roadway and a hand off the wheel.'' The 
commenters felt that the Agency's use of the phrase ``a hand off the 
wheel'' was too restrictive and that it sounded as if FMCSA was 
implying that drivers maintain both hands on the wheel at all times.
    FMCSA Response. The Agency understands that drivers often take a 
hand off the steering wheel to operate the many controls located in a 
CMV, including the many instrument panel functions, and to shift a 
manual transmission. It was not the intent of the Agency to prevent a 
driver from doing necessary tasks required to safely operate the 
vehicle. FMCSA has not repeated the referenced discussion in the final 
rule. This clarification will correct any misperception the previous 
discussion may have created.
Full Compliance
    FMCSA received one comment regarding the analytical treatment of 
driver compliance in the Agency's Preliminary Regulatory Evaluation. 
The commenter argued that the Agency's assumption of 100 percent 
compliance overstates the potential benefits of the rule. The commenter 
further argued that

[[Page 75480]]

monitoring and enforcing the rule would be problematic and imperfect, 
which would further make compliance inconsistent.
    FMCSA Response. When FMCSA conducts regulatory evaluations for 
rulemakings, the Agency must establish a baseline for its analysis, 
which essentially describes the current state of the regulatory 
conditions involved. A baseline, according to the Office of Management 
and Budget (OMB) guidance, is ``the best assessment of the way the 
world would look absent the proposed regulation.'' \15\
    The purpose of a regulatory evaluation is to provide decision 
makers with the estimated costs and benefits associated with the rule. 
Sometimes the goal of regulation is to correct a deficiency in existing 
rules manifested, for example, by excessive enforcement violations. In 
developing the regulatory evaluation, the Agency assumes complete 
compliance and attempts to show the impact of the provision once it is 
implemented. When estimating the costs and benefits of rules, the 
analysis must therefore assume complete (100%) compliance in its 
hypothetical depiction of various options. This approach creates an 
``all things equal'' relationship between the multiple options within a 
given rule, as well as between the various rules.
    Generally speaking, a reduction in compliance, theoretical or 
actual, reduces not only the associated benefits of a rule, but also 
the associated costs. Departures from the assumption of full compliance 
(an accounting of all costs and benefits) removes some costs and some 
benefits, and therefore, does not result in an overstatement of the 
potential benefits (or costs) of the rule.
---------------------------------------------------------------------------

    \15\ OMB Circular A-4, Regulatory Analysis (09/17/2003), p. 11.
---------------------------------------------------------------------------

Costs and Benefits
    FMCSA received one comment concerning its estimation of costs and 
benefits in the Agency's Preliminary Regulatory Evaluation. Advocates 
argued that the FMCSA's cost/benefit analysis shows that the highest 
net benefit would result from adopting a cell phone restriction that 
applies to all commercial drivers and to both hand-held and hands-free 
use of cell phones. Advocates further stated that implementing the 
lower cost requirement in the final rule would be the better choice.
    FMCSA Response. The FMCSA agrees with Advocates' comment that the 
Agency's cost/benefit analysis shows that the highest net benefit would 
result from adopting a complete cell phone ban for all CMV drivers. The 
commenters, however, did not recognize the distinction between a cost/
benefit analysis and a threshold analysis, which are both used in the 
Agency's analysis for this rule. OMB recognizes that it will not always 
be possible to express in monetary units all of the important benefits 
and costs of rules. If the non-quantified benefits and costs are likely 
to be important, OMB guidance \16\ requires that a threshold analysis 
be carried out in order to evaluate their significance. A threshold or 
a break-even analysis answers the question, ``how small could the value 
of the non-quantified benefits be (or how large would the value of the 
non-quantified costs need to be) before the rule would yield zero net 
benefits''?
---------------------------------------------------------------------------

    \16\ Office of Management and Budget Circular A-4, Sept. 17, 
2003, p. 2.
---------------------------------------------------------------------------

    The Agency is not required to choose the regulatory option with the 
highest net benefit. In the NPRM, FMCSA offered its preference for 
Option Four (a restriction on the use of hand-held mobile telephones by 
all interstate CMV drivers) because it minimizes (for an entire CMV 
population) the costs of restricting mobile telephone use, including 
costs associated with inconvenience, disruption of patterns of business 
operations, and stifling technological innovations. Furthermore, it is 
not clear whether talking on a mobile telephone presents a significant 
risk while driving.
    In the final Regulatory Evaluation, the Agency recalculated the 
estimated costs in order to incorporate a more recent price of diesel 
fuel. The recalculation affected Options Two (a restriction on the use 
of all mobile telephones while operating a CMV for all interstate 
drivers) and Three (a restriction on the use of all mobile telephones 
while operating a passenger carrying CMV for all interstate drivers). 
The revised estimated net benefits of Option Two are negative.

B. PHMSA Comments

Security Concerns
    PHMSA received one comment from the Chemical Facility Security News 
concerning the reporting of security incidents. The commenter was 
concerned that a ban on the use of cell phones may prevent drivers from 
reporting potential security threats while en route to their 
destination. The commenter noted that over the road truck drivers were 
one of the first groups that the Department of Homeland Security (DHS) 
targeted in its ``If You See Something, Say Something\TM\'' Campaign. 
DHS recognized that truck drivers would be seeing many things in 
operation of their commercial vehicles that might be indicators of 
potential terrorist activities, including attempts at hijacking 
hazardous materials. The commenter recognizes that this rule would not 
stop those reports from being made, but would require the delay of 
those reports until the vehicle was parked off the roadway.
    PHMSA Response. As noted above in the FMCSA response, this final 
rule allows a CMV driver to use either a hand-held or hands-free mobile 
telephone to contact law enforcement or other emergency services for 
such purposes as reporting potential terrorist activities, including 
attempts to hijack hazardous materials.
Complete Mobile Telephone Ban
    A few commenters, including API, NTSB, and Advocates thought that 
PHMSA should ban both hand-held and hands-free mobile telephone use. 
The ATA strongly opposed banning of hands-free devices.
    PHMSA Response. See FMCSA response above.
CB Radios
    API also suggested that PHMSA ban the use of CB radios for drivers 
of CMVs. The commenter suggests adding regulatory language to include 
restricting the use of ``CB radios or other headset devices.''
    PHMSA Response. The use of CB radios by CMV drivers is outside the 
scope of this rulemaking.
Employer Liability
    ATA stated that employers should not be held responsible for a 
driver's use of a hand-held mobile telephone. ATA suggested the Agency 
add the word ``knowingly'' to Sec.  392.82 so that it would read as 
follows: ``No motor carrier shall knowingly allow or require its 
drivers to use a hand-held mobile telephone while driving a CMV.''
    PHMSA Response. See FMCSA response above.
Law Enforcement
    Robert Baldwin is concerned that state police and other law 
enforcement officials will not be held to the same standard as CMV 
drivers.
    PHMSA Response. The use of mobile communications devices by law 
enforcement officials is outside the scope of this rulemaking.

IV. Discussion of the Rule

    This rule amends regulations in 49 CFR parts 177, pertaining to 
carriage of hazardous materials by public highway;

[[Page 75481]]

parts 383 and 384, concerning the Agency's CDL regulations; part 390, 
general applicability of the FMCSRs; part 391, driver qualifications 
and disqualifications; and part 392, driving rules. In general, this 
rule reduces the risks of distracted driving by restricting hand-held 
mobile telephone use by drivers who operate CMVs.
    This rulemaking restricts a CMV driver from holding a mobile 
telephone to conduct a voice communication, dialing a mobile telephone 
by pressing more than a single button, or reaching for a mobile phone 
in an unacceptable and unsafe manner (e.g. reaching for any mobile 
telephone on the passenger seat, under the driver's seat, or into the 
sleeper berth). Thus, a driver of a CMV who desires to use a mobile 
phone while driving will need to use a compliant mobile telephone (such 
as hands-free) located in close proximity to the driver that can be 
operated in compliance with this rule. Thus, the ease of ``reach'' or 
accessibility of the phone is relevant only when a driver chooses to 
have access to a mobile telephone while driving. Essentially, the CMV 
driver must be ready to conduct a voice communication on a compliant 
mobile telephone, before driving the vehicle. The rule includes 
definitions related to the hand-held mobile telephone restriction.
    The rule adds a driver disqualification provision for: (1) 
Interstate CMV drivers convicted of using a hand-held mobile telephone, 
and (2) CDL holders convicted of two or more serious traffic violations 
of State or local laws or ordinances on motor vehicle traffic control, 
including using a hand-held mobile telephone. The rule also requires 
interstate motor carriers to ensure compliance by their drivers with 
the restrictions on use of a hand-held mobile telephone while driving a 
CMV. Finally, the rule prohibits motor carriers and employers from 
requiring or allowing a CMV driver to use a hand-held mobile telephone 
while operating in interstate commerce.
    There is a limited exception to the hand-held mobile telephone 
restriction. This exception allows CMV drivers to use their hand-held 
mobile telephones if necessary to communicate with law enforcement 
officials or other emergency services.
    This rulemaking also amends the authority citations for 49 CFR 
parts 177, 383, 384, 390, 391, and 392 to correct statutory references 
and eliminate references that are either erroneous or unnecessary.

Section 177.804

    PHMSA adds a new paragraph (c) 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 FMCSRs. This ensures that 
the FMCSA restriction on a driver's use of hand-held mobile telephones 
applies to both intrastate and interstate motor carriers operating CMVs 
as defined in 49 CFR 390.5.

Section 383.5

    FMCSA adds a new definition for the term ``mobile telephone.'' The 
Agency adopts a definition of ``mobile telephone'' based on the FCC 
regulations to cover the multitude of devices that allow users to send 
or receive voice communication while driving. It identifies the type of 
activity that is restricted by this rule.
    The definition of ``mobile telephone'' reflects the wide variety of 
radio telephone services, in addition to cell phone services, that are 
licensed by FCC and might be available for use in a CMV. ``Mobile 
telephone'' could include, for example, a satellite telephone service 
or a broadband radio service. Using such wireless communication 
services is just as distracting to a CMV driver as using a cell phone. 
FCC classifies these services as ``commercial mobile radio services,'' 
which are incorporated into the definition of mobile telephone. The FCC 
definition for mobile telephone does not include two-way or Citizens 
Band radio services.
    To be consistent and to address commenters' concerns, FMCSA 
modified the existing definition of ``texting'' in 49 CFR 390.5 to 
reflect the Agency's restriction on a driver's use of a hand-held 
mobile telephone in this rule. FMCSA eliminated the dialing exception, 
as it would now be considered texting. Under the provisions implemented 
in this rule, the driver can press a single button to initiate or 
terminate a call. The Agency also removed the proposed definition of 
``using a hand-held mobile telephone'' from Sec.  383.5. Part 383 
establishes the disqualification of CDL drivers that is defined by 
State or local law or ordinance on motor vehicle traffic control that 
restricts or prohibits the use of hand-held mobile telephones. In 
contrast, the Federal disqualification standards and definitions are 
contained in Sec. Sec.  391.15 and 390.5.

Section 383.51

    In Table 2 to 49 CFR 383.51, FMCSA adds a new serious traffic 
violation that would result in a CDL driver being disqualified. This 
serious traffic violation is a conviction for violating a State or 
local law or ordinance on motor vehicle traffic control restricting or 
prohibiting hand-held mobile telephone use while driving a CMV. The 
Agency modified the definition of ``driving'' in footnote 2, removing 
the phrase ``with the motor running'' and replacing it with ``on the 
highway'' (consistent with our definition of ``highway'' in 49 CFR 
390.5), to clarify the scope of the restriction. The modified 
definition now reflects the use of hybrid vehicles on the highways, 
which can be operated without the motor running. Our definition for 
``driving'' now reads as follows: ``Driving, for the purpose of this 
disqualification, means operating a commercial motor vehicle on a 
highway, including while temporarily stationary because of traffic, a 
traffic control device, or other momentary delays. Driving does not 
include operating a commercial motor vehicle 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.'' The Agency's 
decision to change the definition of driving is consistent with the 
provisions of 49 U.S.C. 31310(e), which indicates the serious traffic 
violation must occur while the driver is operating a CMV that requires 
a CDL; the operative provisions in the revised table 2 of Sec.  
383.51(c) limit the types of violations that could result in a 
disqualification accordingly.
    States must disqualify a CDL driver whenever that driver is 
convicted of the triggering number of violations while operating in any 
State where such conduct is restricted or prohibited by a State or 
local law or ordinance on motor vehicle traffic control.

Section 384.301

    Due to intervening amendments (76 FR 39019, July 5, 2011; 76 FR 
68332, November 4, 2011), FMCSA redesignates proposed paragraph (f) as 
paragraph (h). It requires all States that issue CDLs to implement the 
new provisions in part 383 that relate to disqualifying CDL drivers for 
violating the new serious traffic violation of using a hand-held mobile 
telephone while driving a CMV. States are required to implement these 
provisions as soon as practical, but not later than 3 years after this 
rule is effective.

[[Page 75482]]

Section 390.3

    FMCSA modifies several discretionary regulatory exemptions 
concerning the applicability of the existing FMCSRs, including one for 
school bus operations and one for CMVs designed or used to transport 
between 9 and 15 passengers (including the driver), not for direct 
compensation (49 CFR 390.3(f)(1) and (6)). The Agency finds that this 
action is necessary for public safety regarding school bus 
transportation by interstate motor carriers, a finding required by the 
applicable statutory provisions, as explained above in the legal 
authority section. In addition, the Agency determined that, in order to 
enhance public safety to the greatest extent possible, the rule will 
apply to the operation by drivers of small, passenger-carrying vehicles 
(designed to transport 9-15 passengers), not for direct compensation, 
who are otherwise exempt from most of the FMCSRs under 49 CFR 
390.3(f)(6).

Section 390.5

    FMCSA amends 49 CFR 390.5 by adding new definitions for the terms 
``mobile telephone'' and ``use a hand-held mobile telephone,'' for 
general application. In this rulemaking, FMCSA defines ``use a hand-
held mobile telephone'' to clarify that certain uses of a hand-held 
mobile telephone are restricted, including holding, dialing, and 
reaching in a proscribed manner for the mobile telephone to conduct 
voice communication. (That is, if a compliant mobile telephone is close 
to the driver and operable by the driver while restrained by properly 
installed and adjusted seat belts, then the driver would not be 
considered to be reaching. Reaching for any mobile telephone on the 
passenger seat, under the driver's seat, or into the sleeper berth are 
not acceptable actions.) As stated above in Sec.  383.5, FMCSA also 
modified the definition of ``texting.''
    FMCSA recognizes that mobile telephones often have multi-functional 
capability and is not prohibiting the use of mobile telephones for 
other uses. Of course, other types of activities using a mobile 
telephone might be covered by other rules, such as those addressing 
texting while driving a CMV.

Section 391.2

    FMCSA amends 49 CFR 391.2, which provides certain exceptions to the 
requirements of part 391 for custom farm operations, apiarian 
industries, and specific farm vehicle drivers, to enable the Agency to 
make violations of the Federal mobile telephone restriction a 
disqualifying offense for such drivers. While the explicit Federal 
restriction against hand-held mobile telephone use applies directly to 
these drivers, the disqualification provision in Sec.  391.15(g) below 
would not apply without this amendment to the current exceptions under 
49 CFR 391.2.

Section 391.15

    FMCSA adds a new paragraph (f) to 49 CFR 391.15 entitled, 
``Disqualification for violation of restriction on using a hand-held 
mobile telephone while driving a commercial motor vehicle.'' This 
provision provides for the disqualification from operating a CMV in 
interstate commerce of any driver convicted of two or more violations 
within a 3-year period of the new hand-held mobile telephone use 
restriction while operating a CMV as set forth in Sec.  392.82. For the 
driver's first hand-held mobile telephone use conviction, the Agency 
could assess a civil penalty against the driver. If a driver is 
convicted of committing a second hand-held mobile telephone use 
violation within 3 years, he or she would be disqualified for 60 days, 
in addition to being subject to the applicable civil penalty. For three 
or more hand-held mobile telephone use convictions for violations 
committed within 3 years, a driver would be disqualified for 120 days, 
in addition to being subject to the applicable civil penalty.
    This change to the disqualifying offenses for interstate drivers 
mirrors the Agency's corresponding new provisions governing the 
disqualification offenses for CDL drivers in Sec.  383.51(c). The 
required number of convictions to cause a disqualification by FMCSA and 
the period of disqualification is the same: 60 days for the second 
offense within 3 years and 120 days for three or more offenses within 3 
years. In addition, the first and each subsequent violation of such a 
restriction or prohibition by a driver are subject to civil penalties 
imposed on such drivers, in an amount up to $2,750 (49 U.S.C. 
521(b)(2)(A), 49 CFR 386.81 and Appendix B, A(4)).

Section 392.80

    FMCSA eliminates the exception pertaining to school bus drivers as 
a necessary change in light of Sec.  390.3 (f)(1) and (6).

Section 392.82

    In Sec.  392.82(a), FMCSA adds a new restriction on use of a hand-
held mobile telephone while driving a CMV. This section also states 
that motor carriers must not allow or require CMV drivers to use a 
hand-held mobile telephone while driving. Any violation by an employer 
would subject the employer to civil penalties in an amount up to 
$11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and part 386 Appendix B, 
paragraph (a)(3)).
    In Sec.  392.82(b), a definition of ``driving a commercial motor 
vehicle'' is incorporated into the restriction on use of a hand-held 
mobile telephone while driving, in order to confine the use of that 
term to the restriction and the related disqualification. We also seek 
to avoid limiting the scope of the same term as used in other 
provisions of the FMCSRs.
    FMCSA has eliminated the exception pertaining to school bus drivers 
as a necessary change in light of Sec.  390.3 (f)(1) and (6).
    FMCSA adds a limited exception to the hand-held mobile telephone 
restriction to allow CMV drivers to use their hand-held mobile 
telephones if necessary to communicate with law enforcement officials 
or other emergency services. Emergency services are not limited to 
traditional emergency responders. It may include those who provide 
security and protection in the special environments in which CMV 
drivers operate. CMV drivers are always encouraged to report incidents 
that may threaten national security in a manner consistent with 
safety.'' \17\
---------------------------------------------------------------------------

    \17\ The Department of Homeland Security (DHS) encourages 
everyone to report suspicious observations under the ``See 
Something, Say SomethingTM'' brand to a regional or local 
number. The Transportation Security Administration (TSA) has 
ambitiously recruited active participation from the commercial motor 
carrier community for both its Highway Watch[supreg] and First 
ObserverTM programs, encouraging commercial drivers to 
``observe, assess, and report'' suspicious activity and to report 
such activity to a national call center ((888) 217-5902) in a manner 
consistent with safety.
---------------------------------------------------------------------------

V. Regulatory Analyses

    The rule adopted here restricts the use of hand-held mobile 
telephones by drivers of CMVs. FMCSA adds new driver disqualification 
sanctions for: (1) Interstate drivers of CMVs who fail to comply with 
this Federal restriction and (2) CDL holders who have multiple 
convictions for violating a State or local law or ordinance on motor 
vehicle traffic control that restricts the use of hand-held mobile 
telephones. Additionally, motor carriers operating CMVs are prohibited 
from requiring or allowing a CMV driver to engage in the use of a hand-
held mobile telephone. This rulemaking improves safety on the Nation's 
highways by reducing the prevalence of distracted driving-related 
crashes, fatalities, and injuries involving

[[Page 75483]]

drivers of CMVs. In addition, the rulemaking reduces the financial and 
environmental burden associated with these crashes and promotes the 
efficient movement of traffic and commerce on the Nation's highways. 
The National Highway Traffic Safety Administration reports that, in 
2009, 5,474 people were killed on U.S. roadways in motor vehicle 
crashes that were reported to have involved distracted driving.\18\ 
These fatalities impose a considerable monetary cost to society 
estimated to be approximately $32.8 billion.\19\ In the regulatory 
evaluation (in the docket for this rule), FMCSA estimates the benefits 
and costs of implementing a restriction on the use of hand-held mobile 
telephones while driving a CMV.
---------------------------------------------------------------------------

    \18\ National Highway Traffic Safety Administration Traffic 
Safety Facts, Research Note, DOT HS 811 379, September 2010.
    \19\ This cost assumes a value of statistical life equal to $6 
million.
---------------------------------------------------------------------------

    FMCSA and PHMSA's threshold analysis for this rule shows that 
restricting hand-held mobile telephones would lead to an estimated one-
year cost of $12.1 million. Current guidance from DOT's Office of the 
Secretary places the value of a statistical life at $6.0 million. 
Consequently, this rule will need to eliminate any combination of crash 
types equivalent to two fatalities per year in order for the benefits 
of this rule to equal the costs. These results are summarized below in 
Table 1.

                   Table 1--Threshold Analysis Results
------------------------------------------------------------------------
                                                       Annual break-even
                                    Total estimated        number of
                                    annual costs *        fatalities
                                                         prevented **
------------------------------------------------------------------------
Restriction on Use of Hand-Held   $12.1 Million ***.  Approximately 2.
 Mobile Telephones--All CMV                           Fatalities.
 Drivers.
------------------------------------------------------------------------
* This cost estimate does not include a one-time cost to the States of
  $2.2 million.
** A statistical life is valued at $6 million.
*** This is a worst case annual cost as it would apply only if 100% of
  CMV drivers were theoretically replaced every year.

Because FMCSA and PHMSA are addressing two of the risky activities--
reaching for and dialing on a hand-held mobile telephone--cited in the 
Olson, et al. (2009) study, restricting the use (including holding) of 
hand-held mobile telephones is expected to prevent more than two 
fatalities and the benefits to justify the cost.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA and PHMSA have determined that this rulemaking action is a 
significant regulatory action under Executive Order 12866, Regulatory 
Planning and Review, as supplemented by Executive Order 13563 (76 FR 
3821, Jan. 21, 2011), and that it is significant under DOT regulatory 
policies and procedures because of the substantial Congressional and 
public interest concerning the crash risks associated with distracted 
driving. However, the estimated economic costs do not exceed the $100 
million annual threshold.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
Federal agencies to consider the effects of the regulatory action on 
small business and other small entities and to minimize any significant 
economic impact. The term ``small entities'' comprises small businesses 
and not-for-profit organizations that are independently owned and 
operated and are not dominant in their fields and governmental 
jurisdictions with populations of less than 50,000. Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities and mandates that agencies strive to lessen any adverse 
effects on these businesses.

FMCSA

    Carriers are not required to report revenue to the Agency, but are 
required to provide the Agency with the number of power units (PUs) 
they operate when they register with the Agency and to update this 
figure biennially. Because FMCSA does not have direct revenue figures, 
PUs serve as a proxy to determine the carrier size that would qualify 
as a small business given the SBA's revenue threshold. In order to 
produce this estimate, it is necessary to determine the average revenue 
generated by a PU.
    With regard to truck PUs, the Agency determined in the 2003 Hours-
of-Service Rulemaking RIA \20\ that a PU produces about $172,000 in 
revenue annually (adjusted for inflation).\21\ According to the SBA, 
motor carriers with annual revenue of $25.5 million are considered 
small businesses.\22\ This equates to 148 PUs (25,500,000/172,000). 
Thus, FMCSA considers motor carriers of property with 148 PUs or fewer 
to be small businesses for purposes of this analysis. The Agency then 
looked at the number and percentage of property carriers with recent 
activity that would have 148 PUs or fewer. The results show that at 
least 99 percent of all interstate property carriers with recent 
activity have 148 PUs or fewer.\23\ This amounts to 481,788 carriers. 
Therefore, the overwhelming majority of interstate carriers of property 
are considered small entities.
---------------------------------------------------------------------------

    \20\ FMCSA Regulatory Analysis, ``Hours-of-Service of Drivers; 
Driver Rest and Sleep for Safe Operations,'' Final Rule (68 FR 
22456, Apr. 23, 2003).
    \21\ The 2000 TTS Blue Book of Trucking Companies, number 
adjusted to 2008 dollars for inflation.
    \22\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
(NAIC) System codes, effective August 22, 2008. See NAIC subsector 
484, Truck Transportation.
    \23\ Motor Carrier Management Information System (MCMIS) as of 
June 17, 2010.
---------------------------------------------------------------------------

    With regard to passenger carriers, the Agency conducted a 
preliminary analysis to estimate the average number of PUs for a small 
entity earning $7 million annually, based on an assumption that a 
passenger-carrying PU generates annual revenues of $150,000. This 
estimate compares reasonably to the estimated average annual revenue 
per PU for the trucking industry ($172,000). The Agency used a lower 
estimate because passenger carriers generally do not accumulate as many 
vehicle miles traveled (VMT) per PU as carriers of property; \24\ and 
it is assumed, therefore, that they would generate less revenue on 
average. The analysis concludes that passenger carriers with 47 PUs or 
fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) are considered 
small entities. The Agency then looked at the number and percentage of 
passenger carriers registered with FMCSA that have 47 PUs or fewer. The 
results show that at least 96 percent of all interstate

[[Page 75484]]

passenger carriers with recent activity have 47 PUs or fewer.\25\ This 
amounts to 11,338 carriers. Therefore, the overwhelming majority of 
interstate passenger carriers are considered small entities.
---------------------------------------------------------------------------

    \24\ FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and 
20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008.
    \25\ MCMIS, as of June 17, 2010.
---------------------------------------------------------------------------

    In order to estimate the economic impact of the rule on small 
entities, FMCSA computed a total annual cost per carrier for each 
industry segment. First, FMCSA allocated the total cost \26\ of the 
rule in the first year among property and passenger carriers according 
to their respective shares of total carrier population.\27\ Interstate 
property carriers constitute 98 percent of the total of interstate 
carriers, whereas interstate passenger carriers constitute 2 percent. 
The total annual cost of the rule ($12,095,948) \28\ was thus weighted 
by 98 percent for property carriers, leading to a total cost of 
$11,854,036, and by 2 percent for passenger carriers, leading to a 
total cost of $241,919. Next, FMCSA divided the two weighted costs by 
their respective number of small carriers, as described above, arriving 
at a cost-per-carrier for each segment: $11,854,029/481,788 = $24.60 
for property carriers; and $241,919/11,338 = $21.33 for passenger 
carriers, for a weighted average of $24.50 per small entity.
---------------------------------------------------------------------------

    \26\ The total cost in this section does not include costs to 
the States.
    \27\ The actual cost burden may not necessarily be proportionate 
to the carrier segment's share in the industry. Absent information 
on this distribution, FMCSA applied the above assumption.
    \28\ Excluding costs to the States.
---------------------------------------------------------------------------

    While this rule clearly impacts a substantial number of small 
entities, the Agency does not consider a weighted average cost of 
approximately $24.50 per entity per year to be economically significant 
in light of the estimated average annual revenue of 
$172,000.29 30
---------------------------------------------------------------------------

    \29\ Regulatory Analysis for: Hours-of-Service of Drivers; 
Driver Rest and Sleep for Safe Operations, Final Rule, FMCSA (68 FR 
22456; Apr. 23, 2003).
    \30\ The 2000 TTS Blue Book of Trucking Companies, number 
adjusted to 2008 dollars for inflation.
---------------------------------------------------------------------------

PHMSA

    Similarly, PHMSA has conducted an economic analysis of the impact 
of this rule on small entities. PHMSA's incorporation of the FMCSA 
restriction into the HMR may affect nearly 1,490 small entities; 
however, the direct costs of this rule that small entities may incur 
are only expected to be minimal. PHMSA relied on the cost estimates for 
property carriers identified by FMCSA above since these costs were 
higher than PHMSA found in its regulatory flexibility analysis 
conducted in support of its April 29, 2011 NPRM. While the final rule 
will clearly impact a substantial number of small entities, the Agency 
did not consider an average annual cost of $24.50 per entity to be 
economically significant.
    Accordingly, FMCSA and PHMSA Administrators certify that a 
regulatory flexibility analysis is not necessary.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), FMCSA and PHMSA seek to assist 
small entities in their understanding of this rule so they can better 
evaluate its effects on them. If the rule affects your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section 
of this rule. FMCSA will not retaliate against small entities that 
question or complain about this rule or any policy or action of the 
Agency.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of FMCSA, call 1-(888) REG-FAIR (1-
(888) 734-3247).

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector, of $ 143.1 million (which is 
the value of $100 million in 2010 after adjusting for inflation) or 
more in any 1 year. Though this rule will not result in such 
expenditure, FMCSA and PHMSA discuss the effects of this rule elsewhere 
in this preamble.

Paperwork Reduction Act

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

Privacy Impact Assessment

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

Executive Order 13132 (Federalism)

    A rule has implications for federalism under Executive Order 13132 
entitled, ``Federalism,'' if it has a substantial direct effect on 
State or local governments, on the relationship between the national 
government and the States, or on the distribution of powers and 
responsibilities among the various levels of government. FMCSA and 
PHMSA recognize that, as a practical matter, this rule may have some 
impact on the States. None of the State interests contacted by FMCSA, 
however, or any other commenter expressed concerns to the FMCSA or 
PHMSA dockets pertaining to the Federalism implications of this 
rulemaking initiative.
    In the most general sense, under long-standing principles, the 
FMCSRs establish minimum safety regulations that may be supplemented by 
the States, as long as they are consistent with the regulations. The 
NPRM described the effect of the proposed rules in accordance with 
provisions already set forth in the FMCSRs, which establish the basis 
for the scope of any preemption (75 FR 16398, Apr. 1, 2010). 
Specifically, 49 CFR 390.9 states that except as otherwise specifically 
indicated, subchapter B of this chapter [III of Title 49, CFR] is not 
intended to preclude States or subdivisions thereof from establishing 
or enforcing State or local laws relating to safety, the compliance 
with which would not prevent full compliance with these regulations by 
the persons subject thereto.
    This provision allows the States and their subdivisions to enforce 
their laws and regulations relating to safety, as long as that would 
not preclude persons subject to the FMCSRs from fully complying with 
them. This provision satisfies the requirements of 49 U.S.C. 
31136(c)(2)(B) by minimizing unnecessary preemption and allowing the 
States to establish additional regulations that do not prevent full 
compliance with the FMCSRs. (See also 49 U.S.C. 31141(c)).

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630 entitled, 
``Governmental

[[Page 75485]]

Actions and Interference with Constitutionally Protected Property 
Rights.''

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

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

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

Technical Standards

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

National Environmental Policy Act

    FMCSA analyzed this rule for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily 
assessed that this action requires an Environmental Assessment (EA) to 
determine if a more extensive Environmental Impact Statement (EIS) is 
required. The findings in the Final EA indicate there are no 
significant positive or negative impacts to the environment expected 
from the various options in the rule though there could be minor 
impacts on emissions, hazardous materials spills, solid waste, 
socioeconomics, and public health and safety. Thus, FMCSA, as the lead 
agency in this initiative, issues a Finding of No Significant Impact 
(FONSI) and will not perform an EIS.
    PHMSA discussed NEPA requirements in its April 29, 2011 NPRA (76 FR 
23929). Specifically, PHMSA indicated that it did not anticipate any 
significant positive or negative impacts on the environment expected to 
result from the rulemaking action. In the NPRM, PHMSA requested 
comments regarding 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. PHMSA did not 
receive any comments on this matter.
    In addition, the FMCSA prepared an Environmental Assessment for 
this rulemaking, and will sign a Finding of No Significant Impact 
(FONSI). As is noted in 40 CFR 1506.3, it is appropriate for an agency 
to accept an environmental document in part or in whole, as long as the 
actions covered by the original NEPA analysis are substantially the 
same. PHMSA hereby states that the rulemakings are substantially 
similar, and adopts the Final Environmental Assessment (FEA) as 
prepared by FMCSA, as well as the conclusions the FEA reaches. The 
FMCSA FEA has been used to support a FONSI, which has been prepared and 
signed by the appropriate decision maker within PHMSA. No further NEPA 
analysis will be performed.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c), (42 U.S.C. 7401 et seq.) and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it will not result in any potential increase in 
emissions that are above the general conformity rule's de minimis 
emission threshold levels (40 CFR 93.153(c)(2)). Moreover, based on our 
analysis, it is reasonably foreseeable that the rule will not 
significantly increase total CMV mileage, nor will it significantly 
change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of 
motor carriers. The action merely establishes requirements to restrict 
a driver's use of a hand-held mobile telephone while operating a CMV.

List of Subjects

49 CFR Part 177

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

49 CFR Part 383

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

49 CFR Part 384

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

49 CFR Part 390

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

49 CFR Part 391

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

49 CFR Part 392

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

    For the reasons discussed in the preamble, FMCSA and PHMSA amend 49 
CFR parts 177, 383, 384, 390, 391, and 392 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. Amend Sec.  177.804 by adding a new paragraph (c) to read as 
follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

* * * * *
    (c) Prohibition against the use of hand-held mobile telephones. In 
accordance with Sec.  392.82 of this

[[Page 75486]]

chapter, a person transporting a quantity of hazardous materials 
requiring placarding under Part 172 of this chapter 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.

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

0
3. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 4140, 
Pub. L. 109-59, 119 Stat. 1144, 1746; and 49 CFR 1.73.


0
4. Amend Sec.  383.5 by adding the definition ``mobile telephone'' in 
alphabetical order and revising the definition of ``texting'' to read 
as follows:


Sec.  383.5  Definitions.

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

0
5. Amend Sec.  383.51 by adding a new paragraph (c)(10) to Table 2 and 
revising footnote 2 to read as follows:


Sec.  383.51  Disqualifications of drivers.

* * * * *
    (c) * * *

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

* * * * *

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

0
6. The authority citation for part 384 is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 
and 215, Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; and 49 CFR 
1.73.


0
7. Amend Sec.  384.301 by adding a new paragraph (h) to read as 
follows:


Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (h) A State must come into substantial compliance with the 
requirements of subpart B of this part in effect as of January 3, 2012) 
as soon as practical, but not later than January 3, 2015.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
8. The authority citation for part 390 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, and 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-
1678; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and 
amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat.

[[Page 75487]]

1144, 1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 
1745; and 49 CFR 1.73.

0
9. Amend Sec.  390.3 by revising paragraphs (f)(1) and (f)(6) to read 
as follows:


Sec.  390.3  General applicability.

* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5, except for 
the provisions of Sec. Sec.  391.15(f), 392.80, and 392.82 of this 
chapter.
* * * * *
    (6) The operation of commercial motor vehicles designed or used to 
transport between 9 and 15 passengers (including the driver), not for 
direct compensation, provided the vehicle does not otherwise meet the 
definition of a commercial motor vehicle, except that motor carriers 
and drivers operating such vehicles are required to comply with 
Sec. Sec.  390.15, 390.19, 390.21(a) and (b)(2), 391.15(f), 392.80 and 
392.82 of this chapter.
* * * * *

0
10. Amend Sec.  390.5 by adding the definitions ``mobile telephone'' 
and ``use a hand-held mobile telephone'' in alphabetical order and 
revising the definition of ``texting'' to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Mobile telephone means a mobile communication device that falls 
under or uses any commercial mobile radio service, as defined in 
regulations of the Federal Communications Commission, 47 CFR 20.3. It 
does not include two-way or Citizens Band Radio services.
* * * * *
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, emailing, instant messaging, a command or request to access a 
World Wide Web page, pressing more than a single button to initiate or 
terminate a voice communication using a mobile telephone, or engaging 
in any other form of electronic text retrieval or entry, for present or 
future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global 
positioning system or navigation system; or
    (ii) Pressing a single button to initiate or terminate a voice 
communication using a mobile telephone; or
    (iii) Using a device capable of performing multiple functions 
(e.g., fleet management systems, dispatching devices, smart phones, 
citizens band radios, music players, etc.) for a purpose that is not 
otherwise prohibited in this part.
* * * * *
    Use a hand-held mobile telephone means:
    (1) Using at least one hand to hold a mobile telephone to conduct a 
voice communication;
    (2) Dialing or answering a mobile telephone by pressing more than a 
single button, or
    (3) Reaching for a mobile telephone in a manner that requires a 
driver to maneuver so that he or she is no longer in a seated driving 
position, restrained by a seat belt that is installed in accordance 
with 49 CFR 393.93 and adjusted in accordance with the vehicle 
manufacturer's instructions.

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

0
11. The authority citation for part 391 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31133, 31136, and 31502; sec. 
4007(b), Pub. L. 102-240, 105 Stat, 1914, 2152; sec. 114, Pub. L. 
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat. 
1748, 1767; and 49 CFR 1.73.


0
12. Revise Sec.  391.2 to read as follows:


Sec.  391.2  General exceptions.

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

0
13. Amend Sec.  391.15 by adding a new paragraph (f) to read as 
follows:


Sec.  391.15  Disqualification of drivers.

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

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

0
14. The authority citation for part 392 is revised to read as follows:

    Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; and 49 CFR 
1.73.


0
15. Amend Sec.  392.80 by revising paragraph (d) to read as follows:


Sec.  392.80  Prohibitions against texting.

* * * * *
    (d) Emergency exception. Texting while driving is permissible by 
drivers of a commercial motor vehicle when necessary to communicate 
with law enforcement officials or other emergency services.

0
16. Amend part 392, subpart H, by adding a new Sec.  392.82 to read as 
follows:


Sec.  392.82  Using a hand-held mobile telephone.

    (a)(1) No driver shall use a hand-held mobile telephone while 
driving a CMV.
    (2) No motor carrier shall allow or require its drivers to use a 
hand-held mobile telephone while driving a CMV.
    (b) Definitions. For the purpose of this section only, driving 
means operating a commercial motor vehicle on a highway, including 
while temporarily stationary because of traffic, a traffic control 
device, or other momentary delays. Driving does not include

[[Page 75488]]

operating a commercial motor vehicle when the driver has moved the 
vehicle to the side of, or off, a highway and has halted in a location 
where the vehicle can safely remain stationary.
    (c) Emergency exception. Using a hand-held mobile telephone is 
permissible by drivers of a CMV when necessary to communicate with law 
enforcement officials or other emergency services.

    Issued on: November 22, 2011.
William Bronrott,
Deputy Administrator, Federal Motor Carrier Safety Administration.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-30749 Filed 12-1-11; 8:45 am]
BILLING CODE 4910-EX-P