
[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Proposed Rules]               
[Page 16391-16404]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-29]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

[Docket No. FMCSA-2009-0370]
RIN 2126-AB22

 
Limiting the Use of Wireless Communication Devices

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to prohibit texting by commercial motor vehicle (CMV) drivers 
while operating in interstate commerce and to impose sanctions, 
including civil penalties and disqualification from operating CMVs in 
interstate commerce, for drivers who fail to comply with this rule. 
Additionally, motor carriers would be prohibited from requiring or 
allowing their drivers to engage in texting while driving. FMCSA also 
proposes amendments to its commercial driver's license (CDL) 
regulations to add to the list of disqualifying offenses a conviction 
under State or local laws, regulations, or ordinances that prohibit 
texting by CDL drivers while operating a CMV, including school bus 
drivers. Recent research commissioned by FMCSA shows that the odds 
ratio of being involved in a safety-critical event (e.g., crash, near-
crash, lane departure) is 23.2 times greater for drivers who engage in 
texting while driving than for those who do not. This rulemaking would 
increase safety on the Nation's highways by reducing the prevalence of 
or preventing certain truck- and bus-related crashes, fatalities, and 
injuries associated with distracted driving.

DATES: Comments and related material must be received on or before May 
3, 2010.

ADDRESSES: You may submit comments identified by docket number FMCSA-
2009-0370 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rule, contact Mr. Brian Routhier, Transportation Specialist, 
Federal Motor Carrier Safety Administration, Vehicle and Roadside 
Operation Division, at 202-366-1225 or Brian.Routhier@dot.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Abbreviations
III. Background
    A. Legal Authority
    B. Overview of Driver Distraction and Texting
    C. Support for a Texting Prohibition
    D. Studies on Driver Distraction
    E. Existing Texting Bans by Federal, State, and Local Government
IV. Discussion of Proposed Rule
V. Regulatory Analyses

I. Public Participation and Request for Comments

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

Pilot Project on Open Government and the Rulemaking Process

    On January 21st, 2009, President Obama issued a Memorandum on 
Transparency and Open Government in which he described how: ``public 
engagement enhances the Government's effectiveness and improves the 
quality of its decisions. Knowledge is widely dispersed in society, and 
public officials benefit from having access to that dispersed 
knowledge.''
    To support the President's open government initiative, DOT has 
partnered with the Cornell eRulemaking Initiative (CeRI) in a pilot 
project, Regulation Room, to discover the best ways of using Web 2.0 
and social networking technologies to: (1) Alert the public, including 
those who sometimes may not be aware of rulemaking proposals, such as 
individuals, public interest groups, small businesses, and local 
government entities that rulemaking is occurring in areas of interest 
to them; (2) increase public understanding of each proposed rule and 
the rulemaking process; and (3) help the public formulate more 
effective individual and collaborative input to DOT. Over the course of 
several rulemaking initiatives, CeRI will use different Web 
technologies and approaches to enhance public understanding and 
participation, work with DOT to evaluate the advantages and 
disadvantages of these techniques, and report their findings and 
conclusions on the most effective use of social networking technologies 
in this area.
    DOT and the Obama Administration are striving to increase effective 
public involvement in the rulemaking process and strongly encourage all 
parties interested in this rulemaking to visit the Regulation Room Web 
site, http://www.regulationroom.org, to learn about the rule and the 
rulemaking process, to discuss the issues in the rule with other 
persons and groups, and to participate in drafting comments that will 
be submitted to DOT. In this rulemaking, CeRI will submit to the 
rulemaking docket a Summary of the discussion that occurs on the 
Regulation Room site; participants will have the chance to review a 
draft and suggest changes before the Summary is submitted. Participants 
who want to further develop ideas contained in the Summary, or raise 
additional points, will have the opportunity to collaboratively draft 
joint comments that will be also be submitted to the rulemaking docket 
before the comment period closes.
    Note that Regulation Room is not an official DOT Web site, and so 
participating in discussion on that site is not the same as commenting 
in the rulemaking docket. The Summary of discussion and any joint 
comments

[[Page 16392]]

prepared collaboratively on the site will become comments in the docket 
when they are submitted to DOT by CeRI. At any time during the comment 
period, anyone using Regulation Room can also submit individual views 
to the rulemaking docket through the Federal rulemaking portal 
Regulations.gov, or by any of the other methods identified at the 
beginning of this Notice.
    For questions about this project, please contact Brett Jortland in 
the DOT Office of General Counsel at 202-421-9216 or 
brett.jortland@dot.gov.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2009-0370), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Proposed Rules,'' insert ``FMCSA-2009-0370'' in the ``Keyword'' box, 
and click ``Search.'' When the new screen appears, click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
facility, please enclose a stamped, self-addressed postcard or 
envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble, 
available in the docket, go to http://www.regulations.gov and click on 
the ``read comments'' box in the upper right hand side of the screen. 
Then, in the ``Keyword'' box insert ``FMCSA-2009-0370'' and click 
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions'' 
column. Finally, in the ``Title'' column, click on the document you 
would like to review. If you do not have access to the Internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

C. Privacy Act

    Anyone may search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review DOT's complete Privacy Act 
Statement in the Federal Register notice published on April 11, 2000 
(65 FR 19476).
II. Abbreviations

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------------------------------------------------------------------------
AAMVA..................................  American Association of Motor
                                          Vehicle Administrators.
ATA....................................  American Trucking Association.
CDL....................................  Commercial Driver's License.
CFR....................................  Code of Federal Regulations.
CMV....................................  Commercial Motor Vehicle.
CTA....................................  Chicago Transit Authority.
DOT....................................  Department of Transportation.
FARS...................................  Fatality Analysis Reporting
                                          System.
FMCSA..................................  Federal Motor Carrier Safety
                                          Administration.
FMCSRs.................................  Federal Motor Carrier Safety
                                          Regulations.
FR.....................................  Federal Register.
GES....................................  General Estimates System.
MCSAC..................................  Motor Carrier Safety Advisory
                                          Committee.
MCSAP..................................  Motor Carrier Safety Assistance
                                          Program.
MCSIA..................................  Motor Carrier Safety
                                          Improvement Act of 1999.
NAICS..................................  North American Industry
                                          Classification System.
NCSL...................................  National Conference of State
                                          Legislators.
NGA....................................  National Governors Association.
NHTSA..................................  National Highway Traffic Safety
                                          Administration.
NMVCCS.................................  National Motor Vehicle Crash
                                          Causation Survey.
NSC....................................  National Safety Council.
NTSB...................................  National Transportation Safety
                                          Board.
OMB....................................  Office of Management and
                                          Budget.
PDA....................................  Personal Digital Assistant.
s......................................  seconds.
Sec.  .................................  Section symbol.
TCA....................................  Truckload Carriers Association.
U.S.C..................................  United States Code.
VTTI...................................  Virginia Tech Transportation
                                          Institute.
------------------------------------------------------------------------

III. Background

A. Legal Authority

    FMCSA proposes: (1) To prohibit texting using electronic devices by 
certain drivers while operating CMVs in interstate commerce; (2) to 
provide sanctions for certain drivers convicted of texting while 
operating a CMV in interstate commerce, including civil penalties and/
or disqualification from driving CMVs, as defined in 49 CFR 390.5, for 
a specified period of time; and (3) to provide sanctions for CDL 
drivers convicted of violating a State or local law or ordinance 
prohibiting texting while operating a CMV, specifically, a 
disqualification for a specified period of time from operating any CMV. 
The authority for this proposed rule derives from the Motor Carrier 
Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the 
Commercial Motor Vehicle

[[Page 16393]]

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

    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. Id.

    This proposed rule is based primarily on 49 U.S.C. 31136(a)(1), 
which requires regulations that ensure that CMVs are operated safely, 
and secondarily on section 31136(a)(2), to the extent that drivers' 
texting activities might impact their ability to operate CMVs safely. 
The changes proposed in this NPRM would improve the safety of drivers 
operating CMVs. This NPRM does not address the physical condition of 
drivers (49 U.S.C. 31136(a)(3)), nor does it impact possible physical 
effects caused by driving CMVs (49 U.S.C. 31136(a)(4)).
    The applicability to CMV drivers of the relevant provisions of the 
Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR subtitle B, 
chapter III, subchapter B), is governed by whether the drivers involved 
are employees operating a CMV. 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 employees 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 of government employees, 
there are several other regulatory exemptions in the FMCSRs that are 
authorized under the 1984 Act, including one for school bus operations 
(49 CFR 390.3(f)(1) and (3)-(7)). The school bus operations exemption 
only applies to interstate transportation of school children and/or 
school personnel between home and school. This 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)).\1\ Other than 
transportation covered by statutory exemptions, FMCSA has authority to 
prohibit texting by drivers operating CMVs, as defined above.
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    \1\ Former section 31136(e)(1) was amended by section 4007(c) of 
the Transportation Equity Act for the 21st Century, Public Law 105-
178, 112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 
also provides that the amendments made by section 4007(c) ``shall 
not apply to or otherwise affect a waiver, exemption, or pilot 
program in effect on the day before the date of enactment of [TEA-
21] under * * * section 31136(e) of title 49, United States Code.'' 
Section 4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 
U.S.C. 31136). The exemption for school bus operations in 49 CFR 
390.3(f)(1) became effective on November 15, 1988, and was adopted 
pursuant to section 206(f) of the 1984 Act, later codified as 
section 31136(e) (Federal Motor Carrier Safety Regulations; General, 
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law 
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by 
FMCSA affecting the school bus operations exemption would require 
the Agency to comply with former section 31136(e)(1).
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    Violations of such a prohibition may include civil penalties 
imposed on drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 
49 CFR 386.81 and App. B, ] A(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). In 
summary, both a texting prohibition 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. However, before prescribing any 
regulations under the 1984 Act, FMCSA must consider their costs and 
benefits (49 U.S.C. 31136(c)(2)(A)).
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 
27, 1986), which authorized creation of the CDL program, is primarily 
the 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), (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 26,000 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 no statutory exceptions from coverage under the 1986 Act. 
There are several regulatory exceptions, which include the following 
individuals: active duty military service members who operate a CMV for 
military purposes (a mandatory exemption for the States to follow) (49 
CFR 383.3(c)); farmers, firefighters, and 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)). Certain other drivers would be issued 
restricted CDLs under 49 CFR 383.3(e)-(g); such drivers may be covered 
by a texting disqualification under the 1986 Act.
    The 1986 Act does not expressly authorize the Agency to adopt 
regulations governing the safety of operations of CMVs by drivers 
required to obtain a CDL. Most of these drivers are subject to safety 
regulations under the 1984 Act, as described above. However, the 1986 
Act does authorize disqualification of CDL drivers. Specific authority 
exists for disqualification for various types of offenses by CDL 
drivers. This is true even if they are operating a CMV illegally 
because they have not obtained a CDL. Related rulemaking authority 
exists to include serious traffic violations as grounds for

[[Page 16394]]

such disqualifications (49 U.S.C. 31301(12) and 31310).
    Further, in addition to specifically enumerated ``serious traffic 
violations,'' the 1986 Act allows FMCSA to designate additional 
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, in a 3-year period, commits 2 
serious traffic violations involving a CMV operated by the individual 
must be disqualified from operating a CMV for at least 60 days. A 
driver who, in a 3-year period, commits 3 or more serious traffic 
violations involving a CMV operated by the individual must be 
disqualified from operating a CMV for at least 120 days (49 U.S.C. 
31310(e)(1)-(2)). FMCSA has determined that violations by CDL drivers 
of State motor vehicle traffic control laws prohibiting texting while 
driving CMVs should result in a disqualification under this provision, 
because texting results in distracted driving and increases the risk of 
CMV crashes, fatalities, and injuries. Consequently, under its 
statutory authority to find that the violation of a State texting law 
constitutes a serious traffic violation for CMV drivers, FMCSA may 
exercise its rulemaking authority to address this major safety risk by 
requiring the States to disqualify CDL drivers who violate such laws.
    FMCSA is authorized to carry out these statutory provisions by 
delegation from the Secretary of Transportation as provided in 49 CFR 
1.73(e) and (g).

B. Overview of Driver Distraction and Texting

    This rulemaking addresses one type of driver distraction. Driver 
distraction can be defined as the voluntary or involuntary diversion of 
attention from the primary driving tasks due to an object, event, or 
person that shifts the attention away from the fundamental driving 
task. The diversion reduces a driver's situational awareness, decision 
making, or performance and it may result in a crash, near-crash, or 
unintended lane departure by the driver.
    In an effort to understand and mitigate crashes associated with 
driver distraction, the National Highway Traffic Safety Administration 
(NHTSA) has been researching driver distraction with respect to both 
behavioral and vehicle safety countermeasures. Researchers and writers 
classify distraction into various categories, depending on the nature 
of their work. In work involving equipment such as vehicles, one 
distraction classification system includes three categories: visual 
(taking one's eyes off the road), physical (taking one's hands off the 
wheel), and cognitive (thinking about something other than the road/
driving). Texting while driving applies to these three types of driver 
distraction (visual, physical, and cognitive), and thus may pose a 
considerably higher safety risk than other sources of driver 
distraction.
Prevalence of Texting
    Texting is a relatively new phenomenon, growing dramatically among 
cell phone and personal digital assistant (PDA) users. The Department 
recognizes that the problem is growing worse, especially with young 
drivers on our roadways, as noted in a Pew Research Center Report, 
``Teens and Distracted Driving.'' \2\ According to the CTIA, The 
Wireless Association, the number of text messages transmitted by its 
members' customers increased from 32.6 billion in the first 6 months of 
2005 to 740 billion in the first 6 months of 2009. This represents a 
2,200 percent increase in 5 years. While FMCSA's research reveals 
significant insight into the safety risks associated with texting, the 
Agency does not have, at this time, data on the prevalence of texting 
by motorists in general or CMV drivers specifically. FMCSA requests 
that commenters share with the Agency any data and studies on texting 
by CMV drivers.
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    \2\ Madden, M. & Lenhart, A. (November 2009). Teens and 
distracted driving. Pew Research Center's Pew Internet and American 
Lifer Project. Retrieved January 24, 2010 from: http://
www.pewinternet.org//media//Files/Reports/2009/PIP_Teens_and_
Distracted_Driving.pdf.
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    Considering the alarming increase in texting, FMCSA believes that 
texting by CMV drivers while operating on public roads has the 
potential of becoming a widespread safety problem in the absence of an 
explicit Federal prohibition and that this inherently unsafe practice 
should be prohibited to reduce the risks of crashes, injuries, and 
fatalities.
    FMCSA solicits comments on definition, causes, and prevalence of 
``distracted driving''.

C. Support for a Texting Prohibition

    There is an overwhelming amount of public support for a ban on 
texting, or other distracting behaviors, while operating a motor 
vehicle. It is likely that most Americans have either had first hand 
experience with or know someone who has had a motor vehicle near-crash 
event involving a distracted driver. FMCSA and other U.S. Department of 
Transportation (DOT) operating administrations have been studying the 
distracted driving issue for decades. With the exponentially increasing 
use of electronic devices, and numerous crashes and other incidents 
related to distracted driving in recent years, expedited Federal action 
is required. Because of the safety risks, FMCSA is addressing the issue 
of texting through a rulemaking as quickly as possible, which will 
include a review of the comments received in response to this NPRM.
FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
    Section 4144 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005) required the Secretary of 
Transportation to establish a Motor Carrier Safety Advisory Committee 
(MCSAC). The committee provides advice and recommendations to the FMCSA 
Administrator on motor carrier safety programs and regulations and 
operates in accordance with the Federal Advisory Committee Act (5 
U.S.C. App. 2).
    In its March 27, 2009, report to FMCSA, ``Developing a National 
Agenda for Motor Carrier Safety,'' the MCSAC recommended that FMCSA 
adopt new Federal rules concerning distracted driving, including 
texting.\3\ The MCSAC believed the available research shows that 
cognitive distractions pose a safety risk and that there will be 
increases in crashes from cell phone use and texting unless the problem 
is addressed. Therefore, one of MCSAC's recommendations for the 
National Agenda for Motor Carrier Safety was that FMCSA initiate a 
rulemaking to prohibit texting while driving.
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    \3\ Parker, David R., Chair, Motor Carrier Safety Advisory 
Committee (March 27, 2009). Letter to Rose A. McMurray on MCSAC 
national agenda for motor vehicle safety. Retrieved January 11, 
2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-
01FinalReportandLettertoAdministrator090428.pdf.
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Distracted Driving Summit
    The information and feedback DOT received during its Distracted 
Driving Summit, held September 30--October 1, 2009, in Washington, DC 
demonstrated both a need and widespread support for a ban against 
texting while driving.

[[Page 16395]]

Attendees included safety experts; researchers; elected officials, 
including four United States Senators and several State legislators; 
safety advocacy groups; senior law enforcement officials; the 
telecommunications industry; and the transportation industry.
    Summit participants shared their expertise, experiences, and ideas 
for reducing distracted driving behaviors. They addressed the safety 
risk posed by this growing problem across all modes of surface 
transportation. At the conclusion of the Summit, U.S. Transportation 
Secretary Ray LaHood announced a series of concrete actions the Obama 
Administration and DOT are taking to address distracted driving. On 
October 1, 2009, the President issued Executive Order 13513, which 
prohibited texting by Federal employees (details are discussed later in 
this preamble).
    Actions following the Summit included the DOT's plan to immediately 
start rulemakings that would ban texting and restrict, to the extent 
possible, the use of cell phones by truck and interstate bus operators, 
as well as to initiate rulemaking by the Federal Rail Administration 
(FRA) to codify provisions of the FRA's Emergency Order No. 26 
regarding restricting distracting electronic devices (see discussion 
below in Part E). As a result of the Summit, and based on data from 
studies on distracted driving, FMCSA is considering a number of actions 
to combat distracted driving by CMV drivers. Specifically, in addition 
to this rulemaking, FMCSA is considering future rulemaking actions that 
would address whether to limit the use of cell phones and other 
interactive devices in CMVs.
    Secretary LaHood stated: ``Keeping Americans safe is without 
question the Federal government's highest priority--and that includes 
safety on the road, as well as on mass transit and rail.'' In addition, 
the Secretary pledged to work with Congress to ensure that the issue of 
distracted driving is appropriately addressed.
General Public
    Several surveys show that there is public support for a texting 
prohibition. For example, a survey in December 2008 by the AAA 
Foundation for Traffic Safety determined that 94.1 percent of drivers 
consider it unacceptable for a driver to send text messages or e-mail 
while driving while 86.7 percent consider text messaging and e-mailing 
by drivers to be a very serious threat to their personal safety.\4\ A 
CBS News/New York Times poll reported that 90 percent of Americans 
think texting behind the wheel should be outlawed. Over 94 percent of 
those who admit to texting or e-mailing while driving acknowledge that 
it makes them at least a little bit more likely to be involved in a 
crash.\5\ Finally, a nationally representative survey by Nationwide 
Insurance,\6\ conducted in August 2009, found that 80 percent of 
Americans support laws prohibiting text messaging or e-mailing while 
driving.
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    \4\ AAA Foundation for Traffic Safety (October 12, 2009). Safety 
culture: text messaging and cell phone use while driving. Retrieved 
January 11, 2010, from: http://www.aaafoundation.org/pdf/
TextingFS091012.pdf.
    \5\ Connelly, M. (November 1, 2009). Many in U.S. want texting 
at the wheel to be illegal. NYTimes.com. Retrieved January 11, 2010, 
from: http://www.nytimes.com/2009/11/02/technology/
02textingside.html.
    \6\ Gillespie, C. (August 31, 2009). New Nationwide Insurance 
survey shows overwhelming support for laws banning texting while 
driving: Data suggests legislation alone will not solve the problem. 
Nationwide.com. Retrieved January 11, 2010, from: http://
www.nationwide.com/newsroom/twd-survey-results.jsp.
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Safety Advocacy Organizations
    Many safety advocacy groups have voiced support for a prohibition 
on texting while driving. In January 2009, the National Safety Council 
(NSC) called for a nationwide prohibition on all cell phone use while 
driving.\7\ The NSC is focused on alerting the American public to the 
fact that different distractions have different levels of crash risk. 
NSC stated that sending text messages has a much higher risk than most 
other actions that drivers take while driving. Additionally, Advocates 
for Highway and Auto Safety applauded DOT's effort to ban texting by 
truck and motor coach drivers.\8\
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    \7\ National Safety Council, (n.d.). Distracted driving. 
Retrieved January 11, 2010, from: http://www.nsc.org/safety_road/
Distracted_Driving/Pages/distracted_driving.aspx.
    \8\ Gillan, J.S. (October 1, 2009). Safety Advocates respond to 
U.S. DOT Secretary's announcement on measures to reduce distracted 
driving by commercial operators. Retrieved January 11, 2010, from 
the Advocates for Highway and Auto Safety Web site: http://
www.saferoads.org/files/file/
Distracted%20Driving%20Statement%20by%20Judith%20Stone%20October%201,
%202009.pdf.
---------------------------------------------------------------------------

Transportation Industry Associations
    The American Trucking Association's (ATA) executive committee voted 
overwhelmingly to support S. 1536 to prohibit texting (while driving by 
all motorists).\9\ ATA believes that the use of hand-held electronic 
devices and the act of texting with such devices while a motor vehicle 
is in motion should be prohibited.\10\
---------------------------------------------------------------------------

    \9\ American Trucking Associations (October 14, 2009). ATA 
leaders vote overwhelmingly to support anti-texting bill. Retrieved 
January 11, 2010, from: http://www.truckline.com/pages/
article.aspx?id=52%2F0599B3C5-1DA2-463F-8FE5-AF9814303C64.
    \10\ American Trucking Associations (October 29, 2009). 
Addressing the problem of distracted driving. Written testimony to 
the Subcommittee on Highways and Transit, U.S. House of 
Representatives' Transportation and Infrastructure Committee. 
Retrieved January 11, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
---------------------------------------------------------------------------

    Many fleets do not allow drivers to operate any electronic devices 
at all while the vehicle is moving, including dispatching equipment. 
ATA conducted an opinion survey of its safety committees on the use of 
``non-integrated electronic devices.'' From the responses of these 
industry leaders, ATA found that 67 percent of respondents had a policy 
restricting or limiting the use of portable electronic devices while 
driving. United Parcel Service, Inc. has an existing policy of no 
distractions while behind the wheel (e.g., two hands on the wheel and 
no two-way communication) and FedEx does not allow drivers to use any 
electronic device while operating FedEx vehicles.\11\ Additionally, 
ExxonMobil and Shell are examples of large companies that prohibit 
employees' use of any type of cell phone while driving during work 
hours.\12\ Because numerous large commercial trucking operations 
already have policies that prohibit the use of portable electronic 
devices while driving, which would presumably include texting, a 
prohibition on texting is not expected to have an adverse impact on 
trucking fleets.
---------------------------------------------------------------------------

    \11\ Halsey, A. (October 2, 2009). Obama to Federal employees: 
Don't text and drive. Washingtonpost.com. Retrieved January 11, 
2010, from: http://www.washingtonpost.com/wp-dyn/content/article/
2009/10/01/AR2009100103447_pf.html.
    \12\ Insurance Information Institute (December 2009). Cellphones 
and driving. Retrieved January 11, 2010, from: http://www.iii.org/
IU/Cellphone-and-driving/.
---------------------------------------------------------------------------

    FMCSA solicits comments on whether and how companies have 
implemented policies on drivers' use of portable electronic devices 
while driving.
School Bus Operations
    School bus operations have been the focus of distracted driving 
policies; and many cities, towns, and counties prohibit cell phone use 
or texting by school bus operators. The National Association of State 
Directors of Pupil Transportation Services, in a letter to the U.S. 
Senate dated August 7, 2009, stated that it supports S. 1536, which 
would require States to prohibit all

[[Page 16396]]

motorists from writing, sending, or reading text messages while 
driving.\13\
---------------------------------------------------------------------------

    \13\ Hood, C., President of the National Association of State 
Directors of Pupil Transportation Services (August 7, 2009). Letter 
to Senators Schumer, Menendez, Hagan and Landrieu. Retrieved January 
11, 2010, from: http://www.nasdpts.org/documents/alert_act-nasdpts-
support.pdf.
---------------------------------------------------------------------------

Transit Agencies
    The importance of the distracted driving issue has led virtually 
all transit agencies to ban the use of cell phones and electronic 
devices or specifically to ban texting while operating a vehicle in 
passenger service. For example, the Chicago Transit Authority (CTA) 
prohibits texting by employees and discharges offenders. Furthermore, 
several large transit agencies (Massachusetts Bay Transportation 
Authority, CTA, Greater Cleveland Region Transit Authority) have 
prohibited operators from carrying cell phones or other electronic 
devices in the cab, presumably eliminating texting.
    While FMCSA is aware that many organizations have policies on 
texting, FMCSA solicits further comments on texting policy and 
enforcement and on the applicability of State laws and local ordinances 
to school bus drivers and transit employees.

D. Studies on Driver Distraction

    On November 14, 2004, a motorcoach crashed into a bridge overpass 
on the George Washington Memorial Parkway in Alexandria, Virginia. This 
crash was the impetus for a National Transportation Safety Board (NTSB) 
investigation and subsequent recommendation to FMCSA regarding cell 
phone use by passenger-carrying CMVs. In a letter to NTSB dated March 
5, 2007, the Agency agreed to initiate a study to assess:
     The potential safety benefits of restricting cell phone 
use by drivers of passenger-carrying CMVs,
     The applicability of an NTSB recommendation to property-
carrying CMV drivers,
     Whether adequate data existed to warrant a rulemaking, and
     The availability of statistically meaningful data 
regarding cell phone distraction.
Driver Distraction in Commercial Vehicle Operations (``the VTTI 
Study'')--Olson et al., 2009 \14\
---------------------------------------------------------------------------

    \14\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, 
J. (2009) Driver distraction in commercial vehicle operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration, July 2009. Retrieved October 20, 
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-
reports.aspx?
---------------------------------------------------------------------------

    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) recently completed its ``Driver Distraction in 
Commercial Vehicle Operations'' study \15\ and released the final 
report on October 1, 2009. The purpose of the study was to investigate 
the prevalence of driver distraction in CMV safety-critical events 
(i.e., crashes, near-crashes, lane departures, as explained in the VTTI 
study) recorded in a naturalistic data set that included over 200 truck 
drivers and 3 million miles of data. The dataset was obtained by 
placing monitoring instruments on vehicles and recording the behavior 
of drivers conducting real-world revenue-producing operations. Key 
findings were that drivers were engaged in tertiary (non-driving 
related) tasks in 71 percent of crashes, 46 percent of near-crashes, 
and 60 percent of all safety-critical events. Tasks that significantly 
increased risk included texting, looking at a map, writing on a 
notepad, or reading.
---------------------------------------------------------------------------

    \15\ The formal peer review of the ``Driver Distraction in 
Commercial Vehicle Operations Draft Final Report'' was completed by 
a team of three technically qualified peer reviewers who are 
qualified (via their experience and educational background) to 
critically review driver distraction-related research.
---------------------------------------------------------------------------

    Odds ratios (OR) were calculated to identify tasks that were high 
risk. For a given task, an odds ratio of ``1.0'' indicated the task or 
activity was equally likely to result in a safety-critical event as it 
was a non-event or baseline driving scenario. An odds ratio greater 
than ``1.0'' indicated a safety-critical event was more likely to 
occur, and odds ratios of less than ``1.0'' indicated a safety-critical 
event was less likely to occur. The most risky behavior identified by 
the research was ``text message on cell phone,'' \16\ with an odds 
ratio of 23.2. This means that the odds of being involved in a safety-
critical event are 23.2 times greater for drivers who text message 
while driving than for those who do not. Texting drivers took their 
eyes off the forward roadway for an average of 4.6 seconds during the 
6-second interval surrounding a safety-critical event. At 55 mph (or 
80.7 feet per second), this equates to a driver traveling 371 feet, the 
approximate length of a football field, including the end zones, 
without looking at the roadway. At 65 mph (or 95.3 feet per second), 
the driver would have traveled approximately 439 feet without looking 
at the roadway. This clearly creates a significant risk to the safe 
operation of the CMV.
---------------------------------------------------------------------------

    \16\ Although the final report does not elaborate on texting, 
the drivers were engaged in the review, preparation and transmission 
of, typed messages via wireless phones.
---------------------------------------------------------------------------

    Other tasks that drew drivers' eyes away from the forward roadway 
in the study involved the driver interacting with technology: 
calculator (4.4 s), dispatching device (4.1 s), and cell phone dialing 
(3.8 s). Technology-related tasks were not the only ones with high 
visual demands. Non-technology tasks with high visual demands, 
including some mundane or common activities, were: writing (4.2 s), 
reading (4.3 s), looking at a map (3.9 s), and reaching for an object 
(2.9 s).
    The study further analyzed population attributable risk (PAR), 
which incorporates the frequency of engaging in a task. If a task is 
done more frequently by a driver or a group of drivers, it will have a 
greater PAR percentage. Safety could be improved the most if a driver 
or group of drivers were to stop performing a task with a high PAR. The 
PAR percentage for texting is 0.7 percent, which means that 0.7 percent 
of the incidence of safety-critical events are attributable to texting, 
and thus, could be avoided by not texting.

   Table 1--Odds Ratio and Population Attributable Risk Percentage by
                              Selected Task
------------------------------------------------------------------------
                                                            Population
                                                           attributable
                  Task                      Odds ratio         risk
                                                            percentage*
------------------------------------------------------------------------
Complex Tertiary Task:
    Text message on cell phone..........            23.2             0.7
    Other--Complex (e.g., clean side                10.1             0.2
     mirror)............................
    Interact with/look at dispatching                9.9             3.1
     device.............................
    Write on pad, notebook, etc.........             9.0             0.6
    Use calculator......................             8.2             0.2

[[Page 16397]]


    Look at map.........................             7.0             1.1
    Dial cell phone.....................             5.9             2.5
    Read book, newspaper, paperwork,                 4.0             1.7
     etc................................
Moderate Tertiary Task:
    Use/reach for other electronic                   6.7             0.2
     device.............................
    Other--Moderate (e.g, open medicine              5.9             0.3
     bottle)............................
    Personal grooming...................             4.5             0.2
    Reach for object in vehicle.........             3.1             7.6
    Look back in sleeper berth..........             2.3             0.2
    Talk or listen to hand-held phone...             1.0             0.2
    Eating..............................             1.0               0
    Talk or listen to CB radio..........             0.6               *
    Talk or listen to hand-free phone...             0.4               *
------------------------------------------------------------------------
* Calculated for tasks where the odds ratio is greater than one.

    A complete copy of the final report for this study is included in 
the docket referenced at the beginning of this rulemaking notice.
    In addition to FMCSA-sponsored research, the Agency has considered 
other research reports and studies that highlight the safety risks of 
distracted driving in general or of texting, specifically. These 
studies conclude that texting is extremely risky and that it impairs a 
driver's ability to respond to driving situations. Most of these 
studies were small simulator studies, involving young automobile 
drivers. But they provide support for the conclusions of the 
comprehensive study of CMV operations commissioned by FMCSA and 
conducted by VTTI. This information, which includes ongoing research, 
is summarized below and FMCSA welcomes additional studies or data that 
commenters may provide.
Text Messaging During Simulated Driving--Drews, et al., 2009 \17\
---------------------------------------------------------------------------

    \17\ Drews, F.A., Yazdani, H., Godfrey, C.N., Cooper, J.M., & 
Strayer, D.L. (Dec. 16, 2009). Text messaging during simulated 
driving. Salt Lake City, Utah: The Journal of Human Factors and 
Ergonomics Society Online First. Published as doi:10.1177/
0018720809353319. Retrieved December 22, 2009, from http://
hfs.sagepub.com/cgi/rapidpdf/
0018720809353319?ijkey=gRQOLrGlYnBfc&keytype=ref&siteid=sphfs.
---------------------------------------------------------------------------

    This research aimed to identify the impact of text messaging on 
simulated driving performance. Using a high fidelity driving simulator, 
researchers measured the performance of 20 pairs of participants while: 
(1) Only driving; and (2) driving and text messaging. Participants 
followed a pace car in the right lane, which braked 42 times, 
intermittently. Participants were 0.2 seconds slower in responding to 
the brake onset when driving and text messaging, compared to driving-
only. There was no significant difference in responding to the brake 
onset between entering and reading text messages, however. When drivers 
are concentrating on texting of any sort, their reaction times to 
braking events are significantly longer.
Driver Workload Effects of Cell Phone, Music Player, and Text Messaging 
Tasks With the Ford SYNC Voice Interface Versus Handheld Visual-Manual 
Interfaces (``The Ford Study'')--Shutko, et al., 2009 \18\
---------------------------------------------------------------------------

    \18\ Shutko, J., Mayer, J., Laansoo, E., & Tijerina, L. (2009). 
Driver workload effects of cell phone, music player, and text 
messaging tasks with the Ford SYNC voice interface versus handheld 
visual-manual interfaces (paper presented at SAE World Congress & 
Exhibition, April 2009, Detroit, MI). Warrendale, PA: Society of 
Automotive Engineers International. Available from SAE International 
at: http://www.sae.org/technical/papers/2009-01-0786.
---------------------------------------------------------------------------

    A recent study by Ford Motor Company \19\ involving 25 participants 
compared using a hands-free voice interface to complete a task while 
driving with using personal handheld devices (cell phone and music 
player) to complete the same task while driving. Of particular interest 
was the results of this study with regard to total eyes-off-road time 
when texting while driving. The study found that texting, both sending 
and reviewing a text, was extremely risky. The median total eyes-off-
road time when reviewing a text message on a handheld cell phone while 
driving was 11 seconds. The median total eyes-off-road time when 
sending a text message using a handheld cell phone while driving was 20 
seconds.
---------------------------------------------------------------------------

    \19\ The Engineering Meetings Board has approved this paper for 
publication. It has successfully completed SAE's peer review process 
under the supervision of the session organizer. This process 
requires a minimum of three (3) reviews by industry experts.
---------------------------------------------------------------------------

The Effects of Text Messaging on Young Novice Driver Performance--
Hosking, et al., 2006 \20\
---------------------------------------------------------------------------

    \20\ Hosking, S., Young, K., & Regan, M. (February 2006). The 
effects of text messaging on young novice driver performance. 
Victoria, Australia: Monash University Accident Research Centre. 
Retrieved October 15, 2009, from: http://www.monash.edu.au/muarc/
reports/muarc246.pdf.
---------------------------------------------------------------------------

    Hosking studied a very different driver population, but obtained 
similar results. This study used an advanced driving simulator to 
evaluate the effects of text messaging on 20 young, novice Australian 
drivers. The participants were between 18 and 21 years old, and they 
had been driving 6 months or less. Legislation in Australia prohibits 
hand-held phones, but a large proportion of the participants said that 
they use them anyway.
    The young drivers took their eyes off the road while texting, and 
they had a harder time detecting hazards and safety signs, as well as 
maintaining the simulated vehicle's position on the road than they did 
when not texting. While the participants did not reduce their speed, 
they did try to compensate for the distraction of texting by increasing 
their following distance. Nonetheless, retrieving and particularly 
sending text messages had a detrimental effect on driving:
     Difficulty maintaining the vehicle's lateral position on 
the road.
     Harder time detecting hazards.
     Harder time detecting and responding to safety signs.
     Drivers spent up to 400 percent more time with eyes off 
the road than when not texting.

[[Page 16398]]

The Effect of Text Messaging on Driver Behavior: A Simulator Study--
Reed and Robbins, 2008 \21\
---------------------------------------------------------------------------

    \21\ Reed, N. & Robbins, R. (2008). The effect of text messaging 
on driver behaviour: A simulator study. Report prepared for the RAC 
Foundation by Transport Research Laboratory. Retrieved January 12, 
2010, http://www.racfoundation.org/files/
textingwhiledrivingreport.pdf.
---------------------------------------------------------------------------

    The RAC Foundation commissioned this report \22\ to assess the 
impact of text messaging on driver performance and the attitudes 
surrounding that activity in the 17 to 25-year old driver category. 
There were 17 participants in the study, aged 17 to 24. The results 
demonstrated that driving was impaired by texting. Researchers reported 
that ``failure to detect hazards, increased response times to hazards, 
and exposure time to that risk have clear implications for safety.'' 
They reported an increased stopping distance of 12.5 meters, or three 
car lengths, and increased variability of lane position.
---------------------------------------------------------------------------

    \22\ The work described in this report was carried out in the 
Human Factors and Simulation group of the Transport Research 
Laboratory. The authors are grateful to Andrew Parkes who carried 
out the technical review and auditing of this report.
---------------------------------------------------------------------------

Synthesis of Literature and Operating Safety Practices Relating to Cell 
Phone/Personal Data Assistant Use in Commercial Truck and Bus 
Operations--Bergoffen \23\
---------------------------------------------------------------------------

    \23\ Bergoffen, G. (Final Report due Spring 2010). Synthesis of 
literature and operating safety practices relating to cell phone/
personal data assistant use in commercial truck and bus operations. 
Ongoing FMCSA Study.
---------------------------------------------------------------------------

    The objectives of this ongoing research project are threefold. 
First, the project will synthesize findings related to cell phone use 
in automobiles and CMVs. Second, the project will identify current cell 
phone practices, PDA use, including texting, and the magnitude of the 
use in the motor carrier industry. FMCSA will consider how these car-
driver findings apply to truck and bus drivers and what led fleet 
managers to restrict or manage cell phone and PDA use. Finally, the 
project will identify the scope and objectives of ongoing related 
studies, and any significant knowledge gaps that might influence a 
regulatory approach.
Cell Phone Distraction in Commercial Trucks and Buses: Assessing 
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \24\
---------------------------------------------------------------------------

    \24\ Hickman, J. (Preliminary results available Spring 2010). 
Cell phone distraction in commercial trucks and buses: Assessing 
prevalence in conjunction with crashes and near-crashes. Ongoing 
FMCSA study.
---------------------------------------------------------------------------

    The purpose of this ongoing research is to conduct an analysis of 
naturalistic data collected by DriveCam over a 1-year period. 
Commercial trucks (3-axle and tractor-trailer) and buses will be the 
target vehicles in the analyses. This will provide FMCSA with 
descriptive data on the adverse consequences of cell phone use and 
other distractions while driving, including texting. In addition, 
DriveCam will re-review all valid cell phone events within the last 90 
days to determine the frequency of the following cell phone variables: 
dial cell phone, reach for cell phone, reach for Bluetooth/headset/
earpiece, talk/listen on hands-free cell phone, talk/listen on hand-
held cell phone, and text/e-mail/surf Web on cell phone. The results of 
these analyses will provide information on the scope of cell phone use, 
and other distractions, during valid safety events and crashes. FMCSA 
will carefully review the applicability of any findings to the current 
proposed rule.

E. Existing Texting Bans by Federal, State, and Local Governments

Executive Order 13513
    The President immediately used the feedback from the DOT Summit on 
Distracted Driving and issued an Executive Order titled ``Federal 
Leadership on Reducing Text Messaging While Driving'' (74 FR 51225) on 
October 1, 2009, which ordered that:

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

    The Executive Order is applicable to the operation of CMVs by 
Federal government employees carrying out their duties and 
responsibilities, or using electronic equipment supplied by the 
government. This order also encourages contractors to comply while 
operating CMVs on behalf of the Federal government.
Regulatory Guidance
    On January 27, 2010, FMCSA issued regulatory guidance in the 
Federal Register (75 FR 4305) concerning texting while driving a CMV in 
interstate commerce. Specifically, it clarified that while there is not 
an explicit prohibition on ``texting'' in Sec.  390.17, Additional 
equipment and accessories, there is a general restriction against the 
use of equipment and accessories that decrease the safety of operation 
of a CMV. Because handheld or electronic devices brought into the CMV 
are considered ``additional equipment and accessories'' and because 
texting decreases safety through visual, cognitive, and manual 
distraction, the use of electronic devices for texting by CMV operators 
while driving in interstate commerce is prohibited by 49 CFR 390.17. 
The guidance document was not intended as a substitute for notice-and-
comment rulemaking but rather, interpreted and explained the effect of 
existing regulations on texting while driving. This NPRM, if adopted as 
a final rule, would take the guidance a step further by establishing 
more detailed, binding requirements on industry. Accordingly, we 
encourage active participation and input from the public in this 
rulemaking through the notice-and-comment process.
Federal Railroad Administration
    On October 7, 2008, the Federal Railroad Administration (FRA) 
published Emergency Order 26 (73 FR 58702). Pursuant to FRA's authority 
under 49 U.S.C. 20102, 20103, the order, which took effect on October 
1, 2008, restricts railroad operating employees from using distracting 
electronic and electrical devices while on duty. Among other things, 
the order prohibits both the use of cell phones and texting. FRA cited 
numerous examples of the adverse impact that electronic devices can 
have on safe operations. These examples included fatal accidents that 
involved operators who were distracted while texting or talking on a 
cell phone. In light of these incidents, FRA is imposing restrictions 
on the use of such electronic devices, both through its order and a 
rulemaking that seeks to codify the order.
State Restrictions
    Texting while driving is prohibited in 19 States, the District of 
Columbia, and Guam. A list can be found at the following DOT Web site: 
http://www.distraction.gov/state-laws. Generally, the State 
requirements are applicable to all drivers operating motor vehicles 
within those jurisdictions, including CMV operators. Because some 
States do not currently prohibit texting while driving, there is a need 
for a Federal regulation to address the safety risks associated with 
texting by CMV drivers. The Federal restriction would provide uniform 
language applicable to CMV drivers engaged in interstate commerce, 
regardless of the presence or absence of a State law or regulation. 
Generally, State laws and regulations would remain in effect and could 
continue to be enforced with regard to CMV drivers, provided those laws 
and regulations are compatible with the Federal requirements. This 
rulemaking would not affect the ability of States to institute new 
prohibitions on texting while driving. For more information see

[[Page 16399]]

the Federalism section later in this document.

IV. Discussion of Proposed Rule

Federal Prohibition Against Texting by Interstate CMV Drivers

    FMCSA proposes to prohibit CMV drivers who are operating in 
interstate commerce from texting while driving. The Agency would 
include definitions and add a driver disqualification provision for 
interstate drivers convicted of violating the Federal rule.
    This proposed rule would amend regulations in 49 CFR parts 390, 
391, and 392. Generally, for CMV drivers subject to Parts 390, 391, and 
392 of the FMCSRs, it would reduce the risks of distracted driving by 
prohibiting texting by CMV drivers who are operating in interstate 
commerce and impose sanctions, including civil penalties and 
disqualification from operating CMVs in interstate commerce, for 
drivers who fail to comply with this rule.
    FMCSA acknowledges the concerns of motor carriers that have 
invested significant resources in electronic dispatching tools and 
fleet management systems; this rulemaking should not be construed as a 
proposal to prohibit the use of such technology. The rulemaking should 
also not be construed as a proposal to prohibit the use of cell phones 
for purposes other than texting. The Agency will address the use of 
these and other electronic devices while driving in separate notice-
and-comment rulemaking proceedings.
    It is worth noting, however, that while fleet management systems 
and electronic dispatching tools are used by many of the Nation's 
largest trucking fleets, the Department believes safety-conscious fleet 
managers would neither allow nor require their drivers to type or read 
messages while driving. To the extent that there are fleets that 
require drivers to type and read messages while they are driving, the 
Agency will consider appropriate regulatory action to address the 
safety problem.
    FMCSA recognizes that the proposed amendments to its CDL 
regulations would be applicable to Federal, State, or local government-
employed school bus drivers who are required to possess a CDL. The 
explicit prohibition of texting while driving that would apply to CMV 
drivers under 49 CFR Part 392 would not be applicable to Federal, 
State, or local government-employed school bus drivers. The amendment 
to the CDL disqualifying offenses, however, would apply to them if they 
are convicted, while driving a school bus, of violating a State or 
local law or ordinance concerning texting.
    Finally, the proposed amendments to the Agency's CDL regulations 
would be applicable to transit employees who are required to possess a 
CDL. Because of the statutory exception, the explicit prohibition 
against CMV drivers under 49 CFR Part 392 would not be applicable to 
these transit employees, the amendment to the CDL disqualifying 
offences would apply to them if they are convicted, while operating 
their transit vehicle, of violating a State or local law or ordinance 
concerning texting.

Section 390.5

    The Agency proposes to add new definitions for the terms 
``electronic device'' and ``texting,'' for general application. The 
definition of ``driving'' would be incorporated into the prohibition of 
texting while driving a CMV in the proposed new Sec.  392.80, in order 
to restrict the use of the term to texting activities and to avoid 
limiting the scope of the term as used in other provisions of the 
FMCSRs.
    The Agency did not incorporate explanatory adjectives such as 
``handheld,'' ``portable,'' and ``personal'' that had been included in 
other documents because the Agency wanted to focus on the behavior not 
the device. Furthermore, the proposed texting definition clarifies that 
non-texting functions, which smart phones and similar ``multi-
function'' devices can perform (e.g., Global Positioning System 
capabilities and music playing), would not be prohibited by this 
rulemaking.

Section 391.2

    FMCSA would amend 49 CFR 391.2, which provides certain exceptions 
to the requirements of Part 391 for custom farm operations, apiarian 
industries, and specific farm vehicle drivers, to enable the Agency to 
make violations of the Federal texting prohibition proposed today a 
disqualifying offense for such drivers. While the explicit Federal 
prohibition against texting would apply directly to these drivers, the 
disqualification provision would not apply without this amendment to 
the current exception under 49 CFR 391.2.

Section 391.15

    The Agency would add a new paragraph (e) to this section to provide 
for the disqualification of any driver convicted of 2 or more 
violations of the new prohibition set forth in Sec.  392.80 from 
operating a CMV in interstate commerce. The proposed change would 
mirror the corresponding proposed new provisions governing the 
disqualification of CDL drivers in Sec.  383.51(c). The required number 
of convictions to cause a disqualification and the period of 
disqualification would be the same: at least 60 days for the second 
offense within 3 years and at least 120 days for 3 or more offenses 
within 3 years. In addition, the first and each subsequent violation of 
such a prohibition would be subject to civil penalties imposed on such 
drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 
386.81 and App. B, ] A(4)).)

Section 392.80

    In this section the Agency proposes a new prohibition against 
texting while driving a CMV, as defined in 49 CFR 390.5. Furthermore, 
this proposed rule states that motor carriers will not allow nor 
require drivers to text while driving. FMCSA also includes a provision 
in this proposed section to apply this new prohibition to ``school bus 
operations notwithstanding the general exception in 49 CFR 
390.3(f)(1).'' Therefore, school bus drivers who are employed by non-
government entities and who transport school children and/or school 
personnel between home and school in interstate commerce would be 
subject to the proposed prohibition. FMCSA has determined this proposed 
rule is necessary for public safety regarding school bus transportation 
by interstate motor carriers. A definition of driving is included in 
the proposed rule.
    FMCSA also proposes a provision in 49 CFR 390.3(f)(1) to clarify 
that this new prohibition is not subject to the general exception for 
``school bus operations'' (49 CFR 390.5). It thus makes it clear that 
drivers engaged in school bus operations would be subject to both the 
new prohibition and the new disqualification provisions.
    The Agency proposes a limited exception to the texting prohibition 
to allow CMV drivers to text if necessary to communicate with law 
enforcement officials or other emergency services.

Federal Disqualification Standard for CDL Drivers

    FMCSA proposes that any CDL driver operating a CMV (as defined in 
Sec.  383.5) who is convicted of violating a State prohibition against 
texting would be disqualified after his or her second conviction for 
the texting offense or any serious traffic violation (as defined by 
Sec.  383.51(c)). The CDL disqualifying offense would be applicable to 
all persons who are required to possess a CDL, in accordance with the 
requirements of 49 CFR part 383, and who are subject to a State or 
local law or ordinance prohibiting texting. Therefore, the amendment to 
the CDL rules would be applicable to drivers employed by Federal, 
State, or local

[[Page 16400]]

government agencies, transit authorities, and school districts.
    To assist in the enforcement of a texting prohibition for CMVs and 
the application of the provisions for disqualification, the proposed 
regulations would include definitions of the words ``driving,'' 
``electronic devices,'' and ``texting.'' These definitions would 
provide clarity so that, for example, the operation of in-vehicle 
controls or other portable devices while the vehicle is operating would 
not be a texting violation.

Section 383.5

    FMCSA proposes to add new definitions for the terms ``electronic 
device'' and ``texting'' for application in part 383. The Agency 
proposes a broad definition of electronic device in order to cover the 
multitude of devices that allow users to enter and read text messages. 
However, the Agency does not propose to prohibit the use of such 
devices by CMV drivers when used for purposes other than texting. The 
definition of texting would identify the type of activity that would be 
construed to be prohibited by this rule.

Section 383.51

    In Table 2, FMCSA would add a new serious traffic violation that 
would result in a CDL driver being disqualified. This serious traffic 
violation would be a conviction for violating a State or local law or 
ordinance prohibiting texting while driving a CMV. FMCSA proposes to 
add a description of what is considered ``driving'' for the purpose of 
this disqualification. FMCSA notes that the conviction must involve 
``texting'' while operating a CMV and excludes convictions for texting 
by a CDL driver while operating a vehicle for which a CDL is not 
required. The Agency's decision is consistent with the provisions of 49 
U.S.C. 31310(e), which indicates the serious traffic violation must 
occur while the driver is operating a CMV that requires a CDL; the 
operative provisions in the revised table would limit the types of 
violations that could result in a disqualification accordingly.
    As proposed, every State that issues CDLs would be required to 
impose this disqualification on a driver required to have a CDL issued 
by that State whenever that CDL driver was convicted of the necessary 
number of violations while operating in States where such conduct is 
prohibited. This would be the case even if the issuing State did not 
have its own law on motor vehicle traffic control prohibiting texting 
while operating a CMV. See 49 U.S.C. 31310(e) and 31311(a)(15), and 49 
CFR 384.218 and 384.219.

Section 384.301

    A new paragraph (e) is proposed for addition to Sec.  384.301. It 
would require all States that issue CDLs to implement the new 
provisions proposed in Sec.  383.51(c) that relate to disqualifying CDL 
drivers for violating the new serious traffic violation of texting 
while driving a CMV.

State Compatibility

Motor Carrier Safety Assistance Program (MCSAP)
    States that receive MCSAP grant funds would be required, as a 
condition of receiving the grants, to adopt regulations on texting that 
are compatible with final regulations issued as a result of this 
rulemaking (49 U.S.C. 31102(a) and 49 CFR 350.201(a)). If a prohibition 
on texting (such as proposed in Sec.  392.80) and the related 
disqualification (such as proposed in Sec.  391.15(e)) are adopted by 
FMCSA, States under MCSAP would have to adopt compatible regulations 
applicable to both interstate and intrastate transportation as soon as 
practicable, but not later than 3 years thereafter (49 CFR 350.331(d)). 
If States do not adopt compatible regulations prohibiting texting while 
driving a CMV and related disqualifications they may not receive full 
MCSAP grant funding.
CDL Program
    States that issue CDLs would be required to adopt and implement the 
proposed CDL disqualification provisions that require disqualification 
for two or more convictions of violating a State or local law or 
ordinance prohibiting texting while driving a CMV. States should be in 
compliance as soon as practicable, but not later than 3 years after 
FMCSA adopts the disqualification provisions. If they do not comply, 
they may be subject to the loss of up to 5 percent in the first year of 
substantial non-compliance and up to 10 percent in subsequent years of 
certain Federal-aid highway amounts apportioned to the State (49 U.S.C. 
31311(a) and 31314).

V. Regulatory Analyses

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

    This proposed rule is a significant regulatory action under section 
3(f) of Executive Order 12866, Regulatory Planning and Review because 
of the level of public interest in distracted driving in general and 
texting while driving in particular. The Office of Management and 
Budget (OMB) has reviewed the NPRM in accordance with that Order. 
Section 6(a)(3) of the Executive Order requires an assessment of 
potential costs and benefits. Accordingly, a draft Regulatory 
Evaluation has been prepared and is available in the docket referenced 
at the beginning of this rulemaking notice. A summary of the Regulatory 
Analysis (RA) follows:
    FMCSA proposes amendments to the FMCSRs in order to reduce the 
prevalence of driver distraction-related crashes involving CMV drivers 
through a prohibition against texting by CMV drivers and the imposition 
of related disqualification sanctions. The goal of the proposed 
revisions is to reduce or prevent truck and bus crashes, fatalities, 
and injuries due to texting while driving.
    Texting while driving is a recent phenomenon, so quantitative 
safety analyses concerning its specific impact on safety are limited. 
There are, however, numerous studies on driver distraction in general 
that provide a compelling safety argument for taking this action at 
this time. FMCSA analyzed those studies and found that many of their 
findings provide relevant information in support of a texting 
prohibition. With regard to the recent data that provides an assessment 
of the safety risks of texting, the regulatory analysis focuses on one 
particular study--``the VTTI Study'' \25\--which, though limited in 
sample size, sheds light on the potential harm of texting while driving 
CMVs through data gathered from a naturalistic driving study in which 
there was real-world video monitoring of drivers' activities during the 
work day. The odds of being in a safety critical event are 23 times 
greater when a CMV driver is texting while driving.
---------------------------------------------------------------------------

    \25\ Olson, R. L. et al. (2009). ``Driver distraction.''
---------------------------------------------------------------------------

    Because current empirical literature lacks specific findings on the 
safety benefits of prohibiting texting while driving a CMV, FMCSA 
conducted a threshold analysis of the impact of the proposed rule. A 
threshold analysis answers the question, how small does the value of 
the non-quantified benefits (safety benefits in terms of crash 
prevention) have to be in order for the rule's benefits to equal its 
costs. In this case, the proposed rule has minimal costs and presently 
yields unquantifiable (though potentially considerable) benefits.
    The regulatory evaluation considers the following potential costs: 
(a) Value of time lost due to texting while not

[[Page 16401]]

driving during on-duty time; (b) increased crash risk due to trucks 
that are parked on the shoulder of the road; (c) increased fuel cost 
due to idling and exiting and entering the travel lanes of the roadway; 
and (d) increased crash risk due to trucks exiting and entering the 
travel lanes of the roadway. The regulatory evaluation also considers 
potential costs to States. Because the analysis does not yield 
appreciable costs, further analysis pursuant to the Unfunded Mandates 
Reform Act of 1995 was deemed unnecessary.
    The Agency estimates that, at most, CMV drivers will bear a cost of 
approximately $ 2.7 million annually. This cost consists of the value 
of driver time lost due to choosing to pull off the roadway to perform 
texting activities, increased fuel usage due to choosing to pull over 
to the side of the roadway, and the increased risk of a possible rear-
end collision for CMVs being parked off the roadway and pulling into 
and out of the roadway. Current guidance from the Office of the 
Secretary of Transportation places the value of a statistical life at 
$6.0 million. (This guidance is available in the docket for this 
rulemaking.) Consequently, the proposed texting prohibition would have 
to eliminate only one fatal CMV crash for the benefits of this rule to 
exceed the costs.

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
                                                        Lost Driver
                                                           Time       $2.2
                                                        (millions)
-------------------------------------------------------------------- ------
Lost Driver Time (millions).........................            $2.2
Increased Fuel Consumption (millions)...............             0.3
Entering and Exiting Roadway Crashes (millions).....             0.2
                                                     -------------------
    Total Costs.....................................             2.7
Benefit of Eliminating One Fatality (millions)......             6.0
Break-even Number of Lives Saved....................               1
------------------------------------------------------------------------

    FMCSA solicits comment on State compliance costs and other cost 
estimates (e.g. those relating to delayed communication) not addressed 
in this NPRM or its associated Regulatory Evaluation. Additionally, the 
Agency solicits comments and data addressing fatality, injury, and 
property damage only crashes caused by texting while driving a CMV.

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 has conducted an economic analysis of the impact of this 
proposed rule on small entities and certifies that a Regulatory 
Flexibility Analysis is not necessary because the proposed rule will 
not have a significant economic impact on a substantial number of small 
entities subject to the requirements of this rule. This rulemaking will 
affect all of the approximately 357,000 small entities covered by the 
rule; however, the direct costs of this rule to small entities are only 
expected to be the costs for lost driver time from foregoing texting 
while on-duty and costs for pulling to the side of the road to idle the 
truck and send a text message. The majority of motor carriers are small 
entities. Therefore, FMCSA will use the total cost of the proposed rule 
($2.7 million) applied to the number of small entities (357,000) as a 
worse case evaluation which would average less than $8 per carrier. 
This is well below DOT's threshold for a substantial economic impact on 
a small entity. FMCSA requests comments on this certification.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult the FMCSA 
personnel listed in the FOR FURTHER INFORMATION CONTACT section of the 
proposed rule. FMCSA will not retaliate against small entities that 
question or complain about this rule or any policy or action of FMCSA.
    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 $141.3 million (which is the 
value of $100 million in 2008 after adjusting for inflation) or more in 
any 1 year. Though this proposed rule would not result in such 
expenditure, FMCSA discusses the effects of this rule elsewhere in this 
preamble.

Paperwork Reduction Act

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

Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis (PTA) for the proposed 
rule on limiting the use of wireless communication devices and 
determined that it is not a privacy-sensitive rulemaking because the 
rule will not require any collection, maintenance, or dissemination of 
Personally Identifiable Information (PII) from or about members of the 
public.

Executive Order 13132 (Federalism)

    A rule has implications for Federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them.

[[Page 16402]]

    FMCSA recognizes that, as a practical matter, this rule may have an 
impact on the States. Accordingly, the Agency sought advice from the 
National Governors Association (NGA), National Conference of State 
Legislators (NCSL), and the American Association of Motor Vehicle 
Administrators (AAMVA) on the topic of texting by a letter dated 
December 18, 2009. (A copy of these letters is available in the docket 
for this rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the 
opportunity to meet and discuss issues of concern to the States. State 
and local governments will also be able to raise Federalism issues 
during the comment period for this NPRM.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

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

    FMCSA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA determined that it is not a ``significant 
energy action'' under that order. Though it is a ``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 has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

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

National Environmental Policy Act

    The Agency analyzed this NPRM for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004 in the Federal Register (69 FR 9680), that this action 
requires an Environmental Assessment (EA) to determine if a more 
extensive Environmental Impact Statement (EIS) is required. In the 
event that FMCSA finds the impacts to the environment do not warrant 
the more extensive EIS, FMCSA will issue a Finding of No Significant 
Impact (FONSI). The findings of the draft EA reveal that there are no 
significant positive or negative impacts on the environment expected to 
result from the rulemaking action. There could be minor impacts on 
emissions, hazardous materials spills, solid waste, socioeconomics, and 
public health and safety. FMCSA requests comments on this draft 
environmental assessment.
    FMCSA has also analyzed this proposed rule under the Clean Air Act, 
as amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and 
implementing regulations promulgated by the Environmental Protection 
Agency. Approval of this action is exempt from the CAA's general 
conformity requirement since it would not result in any potential 
increase in emissions that are above the general conformity rule's de 
minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, 
based on our analysis, it is reasonably foreseeable that the rule would 
not significantly increase total CMV mileage, nor would it change the 
routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor 
carriers. This action merely establishes requirements to prohibit 
texting while driving and establishes a procedure for disqualification.
    FMCSA seeks comment on these determinations.

Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this NPRM in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impact that could result from its 
promulgation. Environmental justice issues would be raised if there 
were ``disproportionate'' and ``high and adverse impact'' on minority 
or low-income populations. None of the alternatives analyzed in the 
Agency's EA, discussed under NEPA, would result in high and adverse 
environmental impacts.

List of Subjects

49 CFR Part 383

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

49 CFR Part 384

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

49 CFR Part 390

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

49 CFR Part 391

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

49 CFR Part 392

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

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

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

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

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


[[Page 16403]]


    2. Amend Sec.  383.5 by adding the definitions for ``Electronic 
device,'' and ``Texting'' in alphabetical order to read as follows:


Sec.  383.5  Definitions.

* * * * *
    Electronic device includes, but is not limited to, a cellular 
telephone; personal digital assistant; pager; computer; or other device 
used to input, write, send, receive, or read text.
* * * * *
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, e-mailing, instant messaging, a command or request to access a 
World Wide Web page, or engaging in any other form of electronic text 
retrieval or entry, for present or future communication.
    (2) Texting does not include:
    (i) Reading, selecting, or entering a telephone number, an 
extension number, or voicemail retrieval codes and commands into an 
electronic device for the purpose of initiating or receiving a phone 
call or using voice commands to initiate or receive a telephone call;
    (ii) Using an in-cab fleet management system or citizens band 
radio;
    (iii) Inputting or selecting information on a global positioning 
system or navigation system; or
    (iv) Using a device capable of performing multiple functions for a 
purpose that is not otherwise prohibited in this rule.
* * * * *
    3. Amend Sec.  383.51 by adding a new paragraph (c)(9) to Table 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                          combination of
                                                       offenses in this     For a third or     offenses in this
                                     For a second         Table in a          subsequent          Table in a
                                   conviction of any   separate incident   conviction of any   separate incident
                                    combination of      within a 3-year     combination of      within a 3-year
                                   offenses in this      period while      offenses in this      period while
                                      Table in a       operating a non-       Table in a       operating a non-
                                   separate incident   CMV, a CDL holder   separate incident   CMV, a CDL holder
 If the driver operates a motor     within a 3-year         must be         within a 3-year         must be
vehicle and is convicted of: * *     period while      disqualified from     period while      disqualified from
                *                 operating a CMV, a   operating a CMV,   operating a CMV, a   operating a CMV,
                                  person required to   if the conviction  person required to   if the conviction
                                   have a CDL and a     results in the     have a CDL and a     results in the
                                  CDL holder must be      revocation,     CDL holder must be      revocation,
                                   disqualified from   cancellation, or    disqualified from   cancellation, or
                                    operating a CMV    suspension of the    operating a CMV    suspension of the
                                       for * * *         CDL holder's          for * * *         CDL holder's
                                                      license or non-CMV                      license or non-CMV
                                                            driving                                 driving
                                                       privileges, for *                       privileges, for *
                                                              * *                                     * *
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
(9) Violating a State or local    60 days...........  Not applicable....  120 days..........  Not applicable.
 law or ordinance on motor
 vehicle traffic control
 prohibiting texting while
 driving \2\.
----------------------------------------------------------------------------------------------------------------
 * * * * * * *
\2\ Driving, for the purpose of this disqualification, means operating a commercial motor vehicle, with the
  motor running, including while temporarily stationary because of traffic, a traffic control device, or other
  momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor
  running when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location
  where the vehicle can safely remain stationary.

* * * * *

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

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

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

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


Sec.  384.301  Substantial compliance--general requirements.

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

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

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

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

    7. Amend Sec.  390.3 by revising paragraph (f)(1) 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(e) and 392.80);
* * * * *
    8. Amend Sec.  390.5 by adding the definitions for ``Electronic 
device,'' and ``Texting'' in alphabetical order to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Electronic device includes, but is not limited to, a cellular 
telephone; personal digital assistant; pager; computer; or other device 
used to input, write, send, receive, or read text.
* * * * *
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, e-mailing, instant messaging, a command or request to access a 
World Wide Web page, or engaging in any other form of electronic text 
retrieval or electronic text entry for present or future communication.
    (2) Texting does not include:
    (i) Reading, selecting, or entering a telephone number, an 
extension number, or voicemail retrieval codes and commands into an 
electronic device for the purpose of initiating or receiving a phone 
call or using voice commands to initiate or receive a telephone call;
    (ii) Using an in-cab fleet management system or citizens band 
radio;
    (iii) Inputting or selecting information on a global positioning 
system or navigation system; or
    (iv) Using a device capable of performing multiple functions for a 
purpose that is not otherwise prohibited in this rule.
* * * * *

[[Page 16404]]

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

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

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

    10. Revise Sec.  391.2 to read as follows:


Sec.  391.2  General exceptions.

    (a) Farm custom operation. The rules in this part (except for Sec.  
391.15(e)) 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)) 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)) do not apply to a farm vehicle driver except a 
farm vehicle driver who drives an articulated (combination) commercial 
motor vehicle, as defined in Sec.  390.5. (For limited exemptions for 
farm vehicle drivers of articulated commercial motor vehicles, see 
Sec.  391.67.)
    11. Amend Sec.  391.15 by adding a new paragraph (e) to read as 
follows:


Sec.  391.15  Disqualification of drivers.

* * * * *
    (e) Disqualification for violation of prohibition of texting while 
driving a commercial motor vehicle--
    (1) General rule. A driver who is convicted of violating the 
prohibition of texting in Sec.  392.80(a) of this chapter is 
disqualified for the period of time specified in paragraph (e)(2) of 
this section.
    (2) Duration. Disqualification for violation of prohibition of 
texting while driving a commercial motor vehicle--
    (i) Second violation. A driver is disqualified for not less than 60 
days if the driver is convicted of two violations of Sec.  392.80(a) of 
this chapter in separate incidents during any 3-year period.
    (ii) Third or subsequent violation. A driver is disqualified for 
not less than 120 days if the driver is convicted of three or more 
violations of Sec.  392.80(a) of this chapter in separate incidents 
during any 3-year period.

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

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

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

    13. Amend part 392 by adding a new subpart H to read as follows:

Subpart H--Limiting the Use of Electronic Devices


Sec.  392.80  Prohibition against texting.

    (a) Prohibition. No driver shall engage in texting while driving.
    (b) Motor Carriers. No motor carrier shall allow or require its 
drivers to engage in texting while driving.
    (c) Definition. For the purpose of this section only, driving means 
operating a commercial motor vehicle, with the motor running, including 
while temporarily stationary because of traffic, a traffic control 
device, or other momentary delays. Driving does not include operating a 
commercial motor vehicle with or without the motor running when the 
driver has moved the vehicle to the side of, or off, a highway and has 
halted in a location where the vehicle can safely remain stationary.
    (d) Exceptions. (1) The provisions of Sec.  390.3(f)(1) of this 
chapter (school bus operations) are not applicable to this section.
    (2) Texting is permissible by drivers of a commercial motor vehicle 
when necessary to communicate with law enforcement officials or other 
emergency services.

    Issued on: March 29, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-7367 Filed 3-31-10; 4:15 pm]
BILLING CODE 4910-EX-P

