
[Federal Register: September 27, 2010 (Volume 75, Number 186)]
[Rules and Regulations]               
[Page 59118-59136]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se10-27]                         

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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: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
prohibits texting by commercial motor vehicle (CMV) drivers while 
operating in interstate commerce and imposes sanctions, including civil 
penalties and disqualification from operating CMVs in interstate 
commerce, for drivers who fail to comply with this rule. Additionally, 
motor carriers are prohibited from requiring or allowing their drivers 
to engage in texting while driving. FMCSA amends its commercial 
driver's license (CDL) regulations to add to the list of disqualifying 
offenses a conviction under State or local traffic laws 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 of being involved in a safety-critical event (e.g., crash, 
near-crash, unintentional lane deviation) is 23.2 times greater for CMV 
drivers who engage in texting while driving than for those who do not. 
This rulemaking increases 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: The final rule is effective October 27, 2010.

ADDRESSES: For access to the docket to read background documents, 
including those referenced in this document, or to read comments 
received, go to http://www.regulations.gov at any time and insert 
FMCSA-2009-0370 in the ``Keyword'' box, and then click ``Search.'' You 
may also view the docket online by visiting the Docket Management 
Facility in Room W12-140, DOT Building, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, 
except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Background
    A. Legal Authority
    B. Overview of Driver Distraction and Texting
    C. Support for a Texting Prohibition
    D. Investigations and Studies on Driver Distraction
    E. Existing Texting Prohibitions and Restrictions by Federal, 
State, and Local Governments
III. Discussion of Comments
IV. Discussion of Rule
V. Regulatory Analyses

I. Abbreviations

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------------------------------------------------------------------------
AAMVA................................  American Association of Motor
                                        Vehicle Administrators.
Advocates............................  Advocates for Highway and Auto
                                        Safety.
AIA..................................  American Insurance Association.
APTA.................................  American Public Transportation
                                        Association.
ATA..................................  American Trucking Associations,
                                        Inc.
ATU..................................  Amalgamated Transit Union.
CDL..................................  Commercial Driver's License.
CeRI.................................  Cornell eRulemaking Initiative.
CMV..................................  Commercial Motor Vehicle.
CTA..................................  Chicago Transit Authority.

[[Page 59119]]


CVSA.................................  Commercial Vehicle Safety
                                        Alliance.
DOT..................................  U.S. Department of
                                        Transportation.
FARS.................................  Fatality Analysis Reporting
                                        System.
FMCSA................................  Federal Motor Carrier Safety
                                        Administration.
FMCSRs...............................  Federal Motor Carrier Safety
                                        Regulations.
FR...................................  Federal Register.
FRA..................................  Federal Railroad Administration.
GES..................................  General Estimates System.
MCSAC................................  Motor Carrier Safety Advisory
                                        Committee.
MCSAP................................  Motor Carrier Safety Assistance
                                        Program.
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.
NPRM.................................  Notice of Proposed Rulemaking.
NSC..................................  National Safety Council.
NTSB.................................  National Transportation Safety
                                        Board.
OMB..................................  Office of Management and Budget.
OOIDA................................  Owner-Operator Independent
                                        Drivers Association, Inc.
PAR..................................  Population Attributable Risk.
TTD..................................  Transportation Trades Department,
                                        AFL-CIO.
TWU..................................  Transportation Workers Union of
                                        America, AFL-CIO.
UMA..................................  United Motorcoach Association.
VTTI.................................  Virginia Tech Transportation
                                        Institute.
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II. Background

    On April 1, 2010, FMCSA published a notice of proposed rulemaking 
in the Federal Register (75 FR 16391). FMCSA reviewed the over 400 
public comments and made some changes in the final rule in response. 
These changes are described in part IV, Discussion of the Final Rule, 
Section-by-Section, of the preamble.

A. Legal Authority

    FMCSA amends the Federal Motor Carrier Safety Regulations (FMCSRs): 
(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 traffic 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 rule 
derives from the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, 
Title II, 98 Stat. 2832, Oct. 30, 1984), 49 U.S.C. chapter 311 (1984 
Act), and the Commercial Motor Vehicle Safety Act of 1986 (Title XII of 
Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), 49 U.S.C. chapter 
313 (1986 Act).
    The 1984 Act 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 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 improve the safety of drivers operating CMVs. This rule 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 
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 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 (including the 
driver), 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, among others, one for school 
bus operations and one for CMVs designed or used to transport between 9 
and 15 passengers (including the driver), not for direct compensation 
(49 CFR 390.3(f)(1) and (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''

[[Page 59120]]

(former 49 U.S.C. 31136(e)(1)).\1\ Likewise, FMCSA has authority to 
modify the non-statutory exemption for small passenger-carrying CMVs 
not for direct compensation; however, FMCSA is not required to make a 
finding that such action is ``necessary for public safety.'' \2\ 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), Pub. L. 
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).
    \2\ The exemption in 49 CFR 390.3(f)(6) was not adopted until 
2003, after the enactment of TEA-21. See Safety Requirements for 
Operators of Small Passenger-Carrying Commercial Motor Vehicles Used 
In Interstate Commerce, at 68 FR 47860 (Aug. 12, 2003).
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    For any violations by CMV drivers or employers of the requirements 
adopted in this final rule, civil penalties may be imposed on drivers, 
in an amount up to $2,750, and on employers, in an amount up to $11,000 
(49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, paragraphs 
(a)(3) and (4)). Disqualification of a CMV driver for violations of the 
Act and its regulations is also within the scope of the Agency's 
authority under the 1984 Act. Such disqualifications are specified by 
regulation for other violations (49 CFR 391.15). 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, which authorized creation of the CDL program, is the 
basis for State 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 several statutory and regulatory exceptions from the CDL 
requirements, 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, 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 could 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. The 1986 Act, 
however, specifically authorizes the disqualification of CDL drivers 
for various types of offenses. This is true even if drivers have not 
obtained a CDL and are therefore operating a CMV illegally. Related 
rulemaking authority exists to include serious traffic violations as 
grounds for 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 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 Sec.  
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 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 U.S. Department of Transportation (DOT) has 
been studying the distracted driving issue with respect to both 
behavioral and vehicle safety countermeasures. Researchers and writers 
classify distraction into various categories, depending on the nature 
of their work. In work involving equipment such as vehicles, one 
distraction classification system includes three categories: visual 
(taking

[[Page 59121]]

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 while driving is a relatively new phenomenon among cell 
phone and personal digital assistant (PDA) users. DOT acknowledges that 
the potential for the problem is increasing, especially with young 
drivers on our roadways, as noted in a Pew Research Center Report, 
``Teens and Distracted Driving.'' \3\ According to the CTIA--The 
Wireless Association, the overall 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 while driving, the Agency does not have, at this time, data on 
the prevalence of texting by motorists in general or CMV drivers 
specifically. Considering the increase in texting, FMCSA maintains 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. FMCSA prohibits this inherently unsafe 
practice to reduce the risks of crashes, injuries, and fatalities.
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    \3\ Madden, M. & Lenhart, A. (November 2009). Teens and 
distracted driving. Pew Research Center's Pew Internet and American 
Lifer Project. Available in the docket: FMCSA-2009-0370-0004.
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C. Support for a Texting Prohibition

    Based on the response to the Distracted Driving Summit, the 
Secretary's appearances on national television and this rulemaking, 
FMCSA determined there is a considerable amount of public support for a 
ban on texting while operating a motor vehicle. It is likely that most 
Americans either had firsthand experience with or know someone who had 
a motor vehicle crash or near-crash event involving a distracted 
driver. With the exponentially increasing use of electronic devices, 
numerous crashes, and other incidents related to distracted driving in 
recent years, expedited Federal action is required.
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,'' MCSAC recommended that FMCSA adopt 
new Federal rules concerning distracted driving, including texting.\4\ 
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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    \4\ 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 August 24, 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. 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. At the conclusion of the Summit, 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.'' \5\ In addition, the Secretary pledged to work 
with Congress to ensure that the issue of distracted driving is 
appropriately addressed.
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    \5\ DOT press release 156-09, Thursday, October 1, 2009.
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    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 that the 
Obama Administration and DOT are taking to address distracted driving. 
On October 1, 2009, the President issued Executive Order 13513 entitled 
``Federal Leadership on Reducing Text Messaging While Driving'' (74 FR 
51225; October 6, 2009), which prohibited texting by Federal employees 
(details are discussed later in this preamble).
    Actions following the Summit included 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 Railroad 
Administration (FRA) to codify provisions of the FRA's Emergency Order 
No. 26 regarding restricting distracting electronic devices (see 
discussion below in Part E). 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.
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; 86.7 percent consider text messaging and e-mailing by 
drivers to be a very serious threat to their personal safety.\6\ 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.\7\ Finally, a nationally representative survey by Nationwide 
Insurance, conducted in August 2009, found that 80 percent of Americans 
support laws

[[Page 59122]]

prohibiting text messaging or e-mailing while driving.\8\
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    \6\ AAA Foundation for Traffic Safety (October 12, 2009). Safety 
culture: text messaging and cell phone use while driving. Retrieved 
August 24, 2010, from: http://www.aaafoundation.org/pdf/
TextingFS091012.pdf.
    \7\ Connelly, M. (November 1, 2009). Many in U.S. want texting 
at the wheel to be illegal. NYTimes.com. Retrieved August 24, 2010, 
from: http://www.nytimes.com/2009/11/02/technology/
02textingside.html.
    \8\ 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.\9\ 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 (Advocates) applauded DOT's effort to ban 
texting by truck and motor coach drivers.\10\
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    \9\ National Safety Council, (n.d.). Distracted driving. 
Retrieved August 24, 2010, from: http://www.nsc.org/safety_road/
Distracted_Driving/Pages/distracted_driving.aspx.
    \10\ 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 August 24, 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.
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Transportation Industry Associations
    The American Trucking Associations (ATA) believe 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.\11\ In 2009, 
ATA's executive committee voted overwhelmingly to support S.1536, the 
``Avoiding Life-Endangering and Reckless Texting by Drivers Act of 2009 
(the ``ALERT Drivers Act'') a pending bill introduced by Senator 
Schumer on July 29, 2009, that seeks to prohibit texting while driving 
by all motorists.\12\ The ALERT Drivers Act also amends title 23, of 
the U.S. Code, to reduce the amount of Federal highway funding 
available to States that do not enact a law prohibiting an individual 
from writing, sending, or reading text messages while operating a motor 
vehicle.
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    \11\ 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 August 24, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
    \12\ American Trucking Associations (October 14, 2009). ATA 
leaders vote overwhelmingly to support anti-texting bill. Retrieved 
August 24, 2010, from: http://www.truckline.com/pages/
article.aspx?id=52%2F0599B3C5-1DA2-463F-8FE5-AF9814303C64.
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    ATA also conducted an opinion survey of its safety committees on 
the use of ``non-integrated electronic devices'' and found that many 
motor carriers do not allow drivers to operate any electronic devices 
at all while the vehicle is moving, including dispatching equipment. 
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.\13\ Additionally, ExxonMobil and Shell are examples of large 
companies that prohibit employees' use of any type of cell phone while 
driving during work hours.\14\ Because numerous large commercial 
trucking operations already have policies that prohibit the use of 
electronic devices while driving, which would presumably include 
texting, a prohibition on texting is not expected to have an adverse 
impact on a majority of trucking fleets.
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    \13\ Halsey, A. (October 2, 2009). Obama Bans Federal Employees 
From Texting While Driving. Washingtonpost.com. Retrieved August 24, 
2010, from: http://www.washingtonpost.com/wp-dyn/content/article/
2009/10/01/AR2009100103447_pf.html.
    \14\ Insurance Information Institute (December 2009). Cellphones 
and driving. Retrieved August 24, 2010, from: http://www.iii.org/IU/
Cellphone-and-driving/.
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School Bus Operations
    School bus operations have been the focus of distracted driving 
policies; 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 the ALERT Drivers 
Act (S. 1536).\15\
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    \15\ 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 August 
24, 2010, from: http://www.nasdpts.org/documents/alert_act-nasdpts-
support.pdf.
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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, and Greater Cleveland Region Transit Authority) have 
prohibited operators from carrying cell phones or other electronic 
devices in the cab, presumably prohibiting texting.

D. Investigations and 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 (Safety Recommendation H-
06-27) to FMCSA regarding cell phone use by passenger-carrying CMVs. 
The NTSB determined that one probable cause of the crash was the use of 
a hands-free cell phone, resulting in cognitive distraction; therefore, 
the driver did not ``see'' the low bridge warning signs.
    In a letter to NTSB dated March 5, 2007, the Agency agreed to 
initiate a study to assess:
     The potential safety benefits of restricting cell phone 
use by drivers of passenger-carrying CMVs,
     The applicability of an NTSB recommendation to property-
carrying CMV drivers,
     Whether adequate data existed to warrant a rulemaking, and
     The availability of statistically meaningful data 
regarding cell phone distraction. Subsequently, the report ``Driver 
Distraction in Commercial Vehicle Operations'' was published on October 
1, 2009.
Driver Distraction in Commercial Vehicle Operations (``the VTTI 
Study'')--Olson et al., 2009\16\
    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed its ``Driver Distraction in Commercial 
Vehicle Operations'' study \17\ and released the final report on 
October 1, 2009. The purpose of the study was to investigate the 
prevalence

[[Page 59123]]

of driver distraction in CMV safety-critical events (i.e., crashes, 
near-crashes, lane departures, as explained in the VTTI study) recorded 
in a naturalistic data set that included over 200 truck drivers and 3 
million miles of data. The dataset was obtained by placing monitoring 
instruments on vehicles and recording the behavior of drivers 
conducting real-world revenue-producing operations. The study found 
that drivers were engaged in non-driving related tasks in 71 percent of 
crashes, 46 percent of near-crashes, and 60 percent of all safety-
critical events. Tasks that significantly increased risk included 
texting, looking at a map, writing on a notepad, or reading.
---------------------------------------------------------------------------

    \16\ 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. Available in the docket: 
FMCSA-2009-0370-0005.
    \17\ 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,'' \18\ 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.
---------------------------------------------------------------------------

    \18\ 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.
---------------------------------------------------------------------------

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

   Table 1--Odds Ratio and Population Attributable Risk Percentage by
                              Selected Task
------------------------------------------------------------------------
                                                            Population
                                                           attributable
                  Task                      Odds ratio         risk
                                                            percentage*
------------------------------------------------------------------------
Complex Tertiary** Task:
    Text message on cell phone..........            23.2             0.7
    Other--Complex (e.g., clean side                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
    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.
** Non-driving related tasks.

    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 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. However, they provide support for the conclusions of the 
comprehensive study of CMV operations commissioned by FMCSA and 
conducted by VTTI. One limitation of the VTTI study was that the data 
used were collected naturalistically, and not in a controlled 
environment; the ``cognitive distraction'' effects of driver behaviors 
could not easily be determined. This information, which includes 
ongoing research, is summarized below.

[[Page 59124]]

Text Messaging During Simulated Driving--Drews, et al., 2009 \19\
    This research was designed to identify the impact of text messaging 
on simulated driving performance. Using a high fidelity driving 
simulator, researchers measured the performance of 20 pairs of 
participants while: (1) Only driving, and (2) driving and text 
messaging. Participants followed a pace car in the right lane, which 
braked 42 times, intermittently. Participants were 0.2 seconds slower 
in responding to the brake onset when driving and text messaging, 
compared to driving-only. When drivers are concentrating on texting, 
either reading or entering, their reaction times to braking events are 
significantly longer.
---------------------------------------------------------------------------

    \19\ 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. Available in the docket: FMCSA-2009-0370-0006.
---------------------------------------------------------------------------

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 \20\
    A recent study by Ford Motor Company,\21\ involving 25 
participants, compared using a hands-free voice interface to complete a 
task while driving with using personal handheld devices (cell phone and 
music player) to complete the same task while driving. Of particular 
interest were the results of this study with regard to total eyes-off-
road time when texting while driving. The study found that texting, 
both sending and reviewing a text, was extremely risky. The median 
total eyes-off-road time when reviewing a text message on a handheld 
cell phone while driving was 11 seconds. The median total eyes-off-road 
time when sending a text message using a handheld cell phone while 
driving was 20 seconds.
---------------------------------------------------------------------------

    \20\ 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 in the docket: FMCSA-
2009-0370-0007.
    \21\ 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\22\
    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.
---------------------------------------------------------------------------

    \22\ 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. 
Available in the docket: FMCSA-2009-0370-0008.
---------------------------------------------------------------------------

    The young drivers took their eyes off the road while texting, and 
they had a harder time detecting hazards and safety signs, as well as 
maintaining the simulated vehicle's position on the road than they did 
when not texting. While the participants did not reduce their speed, 
they did try to compensate for the distraction of texting by increasing 
their following distance. Nonetheless, retrieving and particularly 
sending text messages had the following effects on driving:
     Difficulty maintaining the vehicle's lateral position on 
the road.
     Harder time detecting hazards.
     Harder time detecting and responding to safety signs.
     Up to 400 percent more time with drivers' eyes off the 
road than when not texting.
The Effect of Text Messaging on Driver Behavior: A Simulator Study -- 
Reed and Robbins, 2008\23\
    The RAC Foundation commissioned this report \24\ to assess the 
impact of text messaging on driver performance and the attitudes 
surrounding that activity in the 17 to 24-year old driver category. 
There were 17 participants in the study. The results demonstrated that 
driving was impaired by texting. Researchers reported that ``failure to 
detect hazards, increased response times to hazards, and exposure time 
to that risk have clear implications for safety.'' They reported an 
increased stopping distance of 12.5 meters, or three car lengths, and 
increased variability of lane position.
---------------------------------------------------------------------------

    \23\ 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. Available in the 
docket: FMCSA-2009-0370-0009.
    \24\ The work described in this report was carried out in the 
Human Factors and Simulation group of the Transport Research 
Laboratory. Andrew Parkes carried out the technical review and 
auditing of this report.
---------------------------------------------------------------------------

Cell Phone Distraction in Commercial Trucks and Buses: Assessing 
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman\25\
    The purpose of this research was to conduct an analysis of 
naturalistic data collected by DriveCam[reg]. The introduction of 
naturalistic driving studies that record drivers (through video and 
kinematic vehicle sensors) in actual driving situations created a 
scientific method to study driver behavior under the daily pressures of 
real-world driving conditions. The research documented the prevalence 
of distractions while driving a CMV, including both trucks and buses, 
using an existing naturalistic data set. This data set came from 183 
truck and bus fleets comprising a total of 13,306 vehicles captured 
during a 90-day period. There were 8,509 buses and 4,797 trucks. The 
data sets in the current study did not include continuous data; it only 
included recorded events that met or exceeded a kinematic threshold (a 
minimum g-force setting that triggers the event recorder). These 
recorded events included safety-critical events (e.g., hard braking in 
response to another vehicle) and baseline events (i.e., an event that 
was not related to a safety-critical event, such as a vehicle that 
traveled over train tracks and exceeded the kinematic threshold). A 
total of 1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant 
conflicts, and 211,171 baselines were captured in the dataset.
---------------------------------------------------------------------------

    \25\ Hickman, J., Hanowski, R., & Bocanegra, J. (2010). 
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: 
FMCSA, September 2010. http://www.fmcsa.dot.gov/facts-research/art-
public-reports.aspx.
---------------------------------------------------------------------------

    Odds ratios were calculated to show a measure of association 
between involvement in a safety-critical event and performing non-
driving related tasks, such as dialing or texting. The odds ratios show 
the odds of being involved in a safety-critical event when a non-
driving related task is present compared to situations when there is no 
non-driving related task. The odds ratios for text/e-mail/accessing the 
Internet tasks were very high, indicating a strong relationship between 
text/e-mail/accessing the Internet while driving and involvement in a 
safety-critical event. Very few instances of this behavior were 
observed during safety-critical events in the current study and even 
fewer during control events. Although truck and bus drivers do not text 
frequently, the data

[[Page 59125]]

suggest that truck and bus drivers who use their cell phone to text, e-
mail, or access the Internet are very likely to be involved in a 
safety-critical event.

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

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

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

    The Executive Order is applicable to the operation of CMVs by 
Federal government employees carrying out their duties and 
responsibilities, or using electronic equipment supplied by the 
government. This order also encourages contractors to comply while 
operating CMVs on behalf of the Federal government.
Regulatory Guidance
    On January 27, 2010, FMCSA published regulatory guidance concerning 
the applicability of 49 CFR 390.17, Additional equipment and 
accessories, to any CMV operator engaged in ``texting'' on an 
electronic device while driving a CMV in interstate commerce (75 FR 
4305). The guidance interpreted Sec.  390.17 as prohibiting texting on 
electronic devices while driving because it decreases the safety of 
operations. As of the effective date of this final rule, the guidance 
will be withdrawn because this final rule makes the guidance on texting 
no longer necessary. The Agency does not intend to remove the authority 
to cite drivers under Sec.  390.17 for unsafe operation of a CMV. 
Section 390.17 still applies to any use of additional equipment and 
accessories that decreases the safety of operation of the CMVs on which 
they are used.
Federal Railroad Administration
    On October 7, 2008, FRA published Emergency Order 26 (73 FR 58702). 
Pursuant to FRA's authority under 49 U.S.C. 20102 and 20103, the order, 
which took effect on October 1, 2008, restricts railroad operating 
employees from using distracting electronic and electrical devices 
while on duty. Among other things, the order prohibits both the use of 
cell phones and texting. FRA cited numerous examples of the adverse 
impact that electronic devices can have on safe operations. These 
examples included fatal accidents that involved operators who were 
distracted while texting or talking on a cell phone. In light of these 
incidents, FRA is imposing restrictions on the use of such electronic 
devices, both through its order and a rulemaking that seeks to codify 
the order. In a notice of proposed rulemaking (NPRM) published May 18, 
2010, FRA proposed to amend its railroad communications regulations by 
restricting the use of mobile telephones and other distracting 
electronic devices by railroad operating employees (75 FR 27672).
State Restrictions
    Texting while driving is prohibited in 30 States, the District of 
Columbia, the Virgin Islands, and Guam. A list of States and 
Territories that have taken such actions can be found at the following 
DOT Web site: http://www.distraction.gov/state-laws. Generally, the 
State requirements are applicable to all drivers operating motor 
vehicles within those jurisdictions, including CMV operators. Because 
some States do not currently prohibit texting while driving, there is a 
need for a Federal regulation to address the safety risks associated 
with texting by CMV drivers. This final rule restriction provides 
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 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 rule does not affect the ability of States to 
institute new prohibitions on texting while driving. For more 
information see the Federalism section later in this document.

III. Discussion of Comments

    FMCSA received approximately 400 comments in response to the 
NPRM.\26\ The commenters included associations representing trucking, 
motorcoaches, public transportation, highway safety, the legal and law 
enforcement communities, the insurance industry, and bicyclists. Three 
unions representing drivers submitted comments, as well as 
representatives of State governments. Commenters from the general 
public included motorists and bicyclists concerned with their safety 
when operating around CMVs. In addition, FMCSA received comments from 
the new Cornell eRulemaking Initiative (CeRI), summarizing the points 
raised by participants in a pilot project called Regulation Room 
(http://www.regulationroom.com).
---------------------------------------------------------------------------

    \26\ See 75 FR 16391 (April 1, 2010).
---------------------------------------------------------------------------

    Most commenters supported the proposal because of the potential 
safety benefits for all vehicle and pedestrian traffic sharing the 
roadway with CMVs. Commenters felt that texting while driving, 
especially while driving a CMV, is dangerous and should be prohibited. 
Many commenters cited crashes or near-crashes with a distracted driver 
in which they, or someone they knew, were involved; in some cases a 
fatality occurred. Many commenters felt that the use of mobile 
telephones has become so much a part of people's lives that it will be 
difficult to get people to stop using these devices in vehicles. A few 
commenters suggested that, just as with seat belts, airbags, and 
driving while impaired, the government must establish regulations 
concerning texting to protect public health and safety.
    Only a few commenters did not support a ban on texting. Some 
commenters said that the responsibility should be addressed by the 
States, with guidance from the Federal government. Several commenters 
suggested that the Agency mandate outreach, education, and company 
policies in lieu of a prohibition.
    The Agency approached the distracted driving issue by taking action 
on the riskiest issue first, by initiating rulemaking to prohibit 
texting by CMV drivers. The use of mobile telephones, including 
texting, is occurring increasingly. By approaching this complex subject 
with a focus, on the unsafe behavior regardless of the technology, 
FMCSA received the support of its stakeholders to act quickly to stop 
texting in CMVs. Subsequently, FMCSA will evaluate other aspects of 
distracted driving and consider future actions.
Dispatching Devices and Fleet Management Systems
    Many commenters were concerned that FMCSA excepted texting on 
dispatching devices from this rulemaking. The American Association for 
Justice believed that FMCSA should go further and prohibit CMV 
operators from using on-board computers while driving. The Commercial 
Vehicle Safety Alliance (CVSA) commented that FMCSA should prohibit not 
only dispatching devices, but many other technologies that cause 
distractions. NSC held that fleet management devices and on-board and 
laptop systems should not be exempt from the rule. Advocates noted that 
it interpreted the NPRM to prohibit all texting while driving, even

[[Page 59126]]

when using such systems as dispatch devices and laptop computers. The 
Owner-Operator Independent Drivers Association (OOIDA) also stated that 
small-business motor carriers use different electronic devices, such as 
laptops, to perform many of the same functions served by fleet 
management systems. OOIDA believed that it was not fair to ban these 
devices and not other dispatch or fleet management devices.
    Some commenters agreed with the proposed exception for other 
electronic devices in this rulemaking. ATA supported the exclusion of 
in-cab fleet management systems, global positioning systems, and 
navigation systems, while noting that potential safety risks of using 
these other systems are not fully known. The American Moving and 
Storage Association and the National Solid Wastes Management 
Association agreed that the prohibition should not include the use of 
electronic dispatching tools and fleet management equipment.
    FMCSA Response:
    Notwithstanding the position of industry associations, the blanket 
exception to the texting ban has been revised to prohibit texting on a 
dispatching device or a device that is part of a fleet management 
system. However, it does not prohibit use of the other functions of 
such devices for purposes other than texting, as defined in the final 
rule. Texting on a dispatching device is indistinguishable from texting 
on another text-capable device and is, therefore, prohibited in this 
final rule. Texting is risky because it causes the driver to remove his 
or her eyes from the forward roadway, regardless of the device used to 
text. The Agency does not see any necessity for drivers to read text 
messages or type text responses on any device while the vehicle is 
being operated on public roads. Using a device, including a dispatch 
device or in-cab fleet management system, for functions other than 
texting is not prohibited by this rule. Consequently, the Agency is 
revising the definition of texting and clarifying the regulatory text 
to make it clear that the rule prohibits texting on any device.
Other Texting Exceptions
    Several commenters requested clarification of the definition of 
texting and other activities that could be considered a form of 
texting. Advocates and the American Insurance Association (AIA) were 
concerned with the exception for ``entering a telephone number, an 
extension number, or voicemail retrieval codes and commands into an 
electronic device. * * *'' They believe that the physical actions 
required to enter a telephone number and perform other excepted tasks 
involve at least visual and physical distraction, if not cognitive as 
well. They appear to differ from text messaging only in terms of 
duration. In addition, AIA was concerned that these exceptions, if not 
carefully provided for, might undercut the ability of law enforcement 
to effectively enforce the ban. AHAS also stated that the Agency should 
use the definition of texting contained in E.O. 13513.
    FMCSA Response:
    The Agency agrees that drivers should always concentrate on the 
road and, therefore, does not condone any unsafe activity while driving 
a CMV. In order to respond quickly to an unsafe driving behavior by CMV 
drivers on our Nation's highways, FMCSA chose to address the texting 
issue first because research indicates that it is a very dangerous 
activity based on the VTTI study.
Small Passenger-Carrying Vehicles
    Advocates commented that texting by drivers operating small buses, 
transporting 9 to 15 passengers including a driver, who are not 
required to have a CDL, would not be prohibited by this regulation. 
Advocates also stated that, given the serious safety problems involving 
small buses and 15 passenger vans used in interstate commerce, leaving 
non-school bus passenger-carrying CMVs without Federal protection from 
texting while driving is inappropriate.
    FMCSA Response:
    FMCSA agrees that these drivers should be included in the final 
rule; and, in fact, most would have been covered. On February 1, 2010, 
in response to section 4136 of SAFETEA-LU, FMCSA published a final rule 
that removed the regulatory exception for small vehicles transporting 
passengers for direct compensation operated within 75 miles of the 
driver's starting location (Safety Requirements for Operators of Small 
Passenger-Carrying Commercial Motor Vehicles Used in Interstate 
Commerce, 75 FR 4996). Drivers employed by such carriers were covered 
by the proposed texting rule, and are still covered by this final rule. 
Beyond that, however, the final rule will also now cover drivers of 
small-passenger carrying vehicles (designed or used to transport 9-15 
passengers), not receiving direct compensation, that are otherwise 
exempt from most of the FMCSRs under 49 CFR 390.3(f)(6), for example 
hotel and rental car shuttle services. The Agency includes this driver 
group in the final rule to cover as many vehicle drivers as possible, 
within its statutory authority.
Enforcement Mechanisms
    The Transportation Trades Department, AFL CIO (TTD) and the 
Amalgamated Transit Union (ATU) expressed concern that, although 
proposed Sec.  392.80 states that ``no motor carrier shall allow or 
require its drivers to engage in texting while driving,'' the NPRM does 
not articulate any enforcement mechanism to hold employers responsible 
for violations of the provision.
    ATA also asked the Agency to modify the regulatory text to more 
clearly define the term ``allow'' in proposed Sec.  392.80. For 
example, if the motor carrier has a policy that prohibits texting and 
has evidence that it has imposed progressive discipline on drivers 
found in violation of the policy, the motor carrier should not be held 
accountable for texting violations. The United Motorcoach Association 
(UMA) and the National Association of Motorcoach Operators had similar 
comments on part 392. UMA stated a preference for language that directs 
carriers to develop policy and training that instructs drivers to 
comply with Federal laws pertaining to texting while driving.
    FMCSA Response:
    FMCSA believes that enforcement mechanisms are already in place. 
Many commenters may not realize that motor carriers and employers that 
allow or require their drivers to text would be subject to civil 
penalties of up to $11,000, as already provided in 49 U.S.C. 
521(b)(2)(A), 49 CFR 386.81, and Appendix B to 49 CFR part 386, 
paragraph (a)(3). The prohibition as it applies to motor carriers, to 
not ``allow or require its drivers to engage in texting while 
driving,'' is similar to other regulations applicable to carriers and 
employers, which have been in effect for many decades (49 CFR 390.11). 
Therefore, FMCSA does not believe a clearer definition of ``allow'' is 
necessary. FMCSA notes that neither the industry nor unions have 
expressed difficulty achieving compliance with similar, if not 
identical, regulatory language elsewhere in the FMCSRs.
    In response to UMA and NAMO comments, due to the serious nature of 
texting while driving, FMCSA believes a regulatory duty should be 
imposed on the carrier directly. Carriers may institute internal 
policies and programs, including educational programs, to meet this 
duty.

[[Page 59127]]

School Bus Operations
    ATU believed it is unnecessary to extend the ban to public school 
bus drivers.
    FMCSA Response:
    FMCSA is precluded by statute from applying the FMCSRs to employees 
of Federal, State and local governments, even when they are engaged in 
transportation in interstate commerce (49 U.S.C. 31132(2) and (3)). 
This would include drivers of school buses employed by such government 
entities. However, drivers employed by private entities providing 
school bus transportation under contract to government entities will be 
covered, if they are engaged in interstate transportation. In addition, 
both government and private drivers of school buses requiring a CDL 
would be subject to the CDL disqualification if they are convicted of 2 
or more serious traffic violations, which can include a conviction for 
violating a State traffic law prohibiting texting while driving.
Transit Agencies
    In response to a request in the NPRM, comments were received from 
representatives of several transit industry interests (i.e., the 
American Public Transportation Association (APTA), ATU, Simi Valley 
Transit) outlining existing policies that include the prohibition of 
texting on any device, personal or transit agency-specific, while 
operating transit vehicles. APTA expressed its support for the rule, 
and provided its recommended practice that outlines distractions that 
should be prohibited, including personal electronic devices, as well as 
other common distractions such as reading print material and consuming 
food.
    ATU stated that it is unnecessary to extend the ban on texting to 
transit employees because virtually all transit agencies already have a 
ban on the use of cell phones and electronic devices while operating a 
vehicle. ATU commented that it is important to recognize the 
differences between a long-haul bus system and a local transit system, 
and allow exceptions for transit agencies, whether operated by Federal, 
State, or local government. Simi Valley Transit supports the 
prohibition and notes that its operators are prohibited from texting on 
any type of communication systems in their vehicles.
    FMCSA Response:
    It is unsafe to text while operating a CMV regardless of the 
operating differences among motorcoach, school bus, or local transit 
system vehicles. There have been instances where transit vehicles were 
involved in an incident or crash while the driver was using a mobile 
phone or electronic device and that activity was noted as a possible 
contributing factor. In June 2008, a video of a San Antonio bus crash 
was aired on major news networks. The video shows a city bus driver 
texting at the wheel moments before crashing into a sport utility 
vehicle.
    However, FMCSA acknowledges that the government exemption applies 
to many transit and school bus operations and their drivers. These 
drivers are only subject to the CDL disqualification if the violation 
occurs in a State that has State or local traffic laws prohibiting 
texting while driving as a serious traffic offense. However, the Agency 
included as many passenger-carrying drivers as possible, within the 
scope of its statutory authority.
Preemption of State and Local Laws
    In response to a request for comments on both texting policies and 
their enforcement and on the applicability of State laws and local 
ordinances to school bus drivers, the Transportation Workers Union of 
America, AFL-CIO (TWU) stated that ``this proposal needs to minimize 
the preemption and keep guidelines leveled,'' citing the provisions of 
49 U.S.C. 31136(c)(2)(B). CVSA commented that the rules should not 
preempt the States' ability to take additional measures with respect to 
non-CDL commercial drivers operating in intrastate commerce. They were 
concerned that the proposed rules might directly or indirectly require 
the States to ``categorize'' all currently exempted non-CDL drivers 
operating in intrastate commerce into the regulations. CVSA suggested 
that such actions should be left to the States through their individual 
laws as they deem appropriate. Any intent to bring these drivers into 
the regulations should be accomplished through a separate rulemaking.
    FMCSA Response:
    In the most general sense, under long-standing principles, the 
FMCSRs establish minimum safety regulations that may be supplemented by 
the States, as long as they are consistent with the regulations. The 
NPRM described the effect of the proposed rules in accordance with 
provisions already in the FMCSRs, which establish the basis for the 
scope of any preemption (75 FR at 16398). Specifically, 49 CFR 390.9 
states:

    Except as otherwise specifically indicated, subchapter B of this 
chapter [III of Title 49, CFR] is not intended to preclude States or 
subdivisions thereof from establishing or enforcing State or local 
laws relating to safety, the compliance with which would not prevent 
full compliance with these regulations by the persons subject 
thereto.

    This provision allows the States and their subdivisions to enforce 
their laws and regulations relating to safety, as long as that would 
not preclude persons subject to the FMCSRs from fully complying with 
them. This provision satisfies the requirements of 49 U.S.C. 
31136(c)(2)(B) by minimizing unnecessary preemption and allowing the 
States to establish additional regulations that do not prevent full 
compliance with the FMCSRs. (See also 49 U.S.C. 31141(c).)
    In the case of States receiving grants under the Motor Carrier 
Safety Assistance Program (MCSAP), however, there has been a continuous 
progression towards uniform CMV safety standards for both interstate 
and intrastate transportation since MCSAP was first enacted as part of 
the Surface Transportation Assistance Act of 1982, Sec. Sec.  401-404, 
Public Law 97-424, 96 Stat. 2097, 2154 (Jan. 6, 1983). The statute 
directs the Agency to provide grants to the States for, among other 
things, ``the enforcement of regulations, standards, and orders of the 
[Federal] Government on commercial motor vehicle safety * * * and 
compatible State regulations, standards and orders'' (49 U.S.C. 
31102(a)).
    Following the enactment of section 4002(l) of Intermodal Surface 
Transportation Efficiency Act of 1991, Public Law 102-240, 105 Stat. 
1914, 2144 (Dec. 19, 1991) (ISTEA), the Agency utilized that statutory 
authority to establish conditions for States that received MCSAP grants 
to preempt incompatible State regulation of CMV safety (Motor Carrier 
Safety Assistance Program, 57 FR 13572, 13579-81 (Apr. 16, 1992) (NPRM) 
and 57 FR 40946, 40951-52 (Sep. 8, 1992) (final rule)). The Agency 
noted (at 57 FR 13580) that:

    Section 4002(l) of the ISTEA directs the Secretary to issue 
final regulations specifying tolerance guidelines and standards for 
ensuring compatibility of intrastate commercial motor vehicle safety 
laws and regulations with the Federal motor carrier safety 
regulations under the MCSAP. The [Agency] has always administered 
the MCSAP in a way that would promote the enforcement by State 
agencies regardless whether the inspected commercial motor vehicles, 
drivers or motor carriers were involved in interstate or intrastate 
commerce. The [Agency] has consistently taken the position that this 
was the intent of MCSAP as originally enacted in the STAA of 1982, 
and this provision confirms that position.

    The Agency has issued tolerance guidelines that allow certain 
limited departures from the Federal standards

[[Page 59128]]

by intrastate CMV regulations, and those guidelines were first 
codified, along with procedures for periodic State and Agency review of 
compatibility, in the 1992 MCSAP final rule. (See 57 FR 40951-52, 
40957-58 (former 49 CFR 350.11) and 40961-62 (49 CFR part 350, former 
App. C).) In addition, the process for determining compatibility of 
State laws with Federal regulations and standards under the authority 
of 49 U.S.C. 31141 was combined with the process for reviewing State 
funding under MCSAP (57 FR 40952).
    More recently, FMCSA reiterated that:

    [T]he congressional intent and purpose of the MCSAP [is] to 
ensure uniformity of regulations and enforcement among the States. 
Since the inception of the program, the agency has required each 
State to enforce uniform motor carrier safety and hazardous 
materials regulations for both interstate and intrastate motor 
carriers and drivers. Safety standards in one State must be 
compatible with the requirements in another State in order to foster 
a uniform national safety environment.

    (Motor Carrier Safety Assistance Program, 65 FR 15092, 15098 (Mar. 
21, 2000)). The MCSAP rules adopted in 2000 recodified and strengthened 
the tolerance guidelines, which are now found at 49 CFR 350.339-
350.345.
    With regard to CVSA's comments on the preemption of State safety 
regulation of intrastate CMV drivers, FMCSA did not propose in this 
rulemaking any departure from the compatibility requirements for 
intrastate CMVs and drivers that are an essential element of MCSAP. As 
explained in the NPRM, the States receiving MCSAP grants will be 
required, as a condition of receiving the grants, to adopt compatible 
regulations with regard to texting by CMV drivers in accordance with 
the requirements of 49 CFR part 350. At the same time, those States 
have the ability, at their discretion, to utilize the limited variances 
from MCSAP compatibility allowed by 49 CFR 350.341, which FMCSA is not 
modifying in this rulemaking. Section 350.341 sets the boundaries for 
the allowable variances from the uniform Federal standard governing 
texting by CMV drivers for intrastate motor carrier operations in the 
States receiving MCSAP grants.
State Adoption
    The National Conference of State Legislators (NCSL) requested that 
DOT provide States with more than 3 years to adopt the necessary laws 
and regulations. NCSL recommended that these new requirements be 
``excluded from the sanctions and withholds that exist in the 
underlying statute and regulations.''
    FMCSA Response:
    The Agency does not believe the request is appropriate given the 
safety risks of texting while driving. Three years is more than enough 
time to adopt this regulation, even if a State legislature meets every 
other year to pass new legislation. The Agency has consistently allowed 
a maximum of 3 years for adoption of MCSAP compatible regulations (49 
CFR 350.331(d)). With regard to CDL regulations, FMCSA is only adding a 
new offense to an existing category of ``Serious Traffic Violations.'' 
No new penalties have to be created by State legislatures; they already 
exist in State statutes and laws for existing serious traffic 
violations set forth in Sec.  383.51. Furthermore, States have 
consistently demonstrated their ability to implement more complex and 
expansive regulations in the past in fewer than 3 years.
Enforcement
    Several commenters noted that enforcement will be difficult and 
highlighted the current lack of enforcement of existing laws. Some 
commenters were concerned that enforcement may take place only after 
there is a crash. To the extent possible, CVSA felt that regulations 
should not be prescriptive, but rather performance-based, and efforts 
should be made to use existing authorities for enforcement. Several 
commenters worried about the mechanics of enforcement.
    In addition, OOIDA commented that an enforcement plan is necessary 
to ensure that enforcement of a restriction on texting conforms to the 
requirements of the Fourth Amendment's provisions governing searches 
and seizures. OOIDA is most concerned about explaining what, if any, 
access enforcement personnel would have to electronic devices present 
in a CMV and to the information stored on the devices.
    FMCSA Response:
    FMCSA does not believe that questions about specific enforcement 
procedures are a basis for not taking action to restrict texting while 
driving. Enforcement of this rule will involve a period of 
familiarization for both Federal and State enforcement agencies. If 
FMCSA were considering a rule allowing texting under certain 
circumstances, performance-based standards might be suitable; they are 
not a viable option for this rule, which requires specific restriction 
concerning an activity that compromises safety. As part of its 
continuing effort to combat distracted driving, DOT kicked off pilot 
programs in Hartford, Connecticut, and Syracuse, New York, to test 
whether increased law enforcement efforts can lead distracted drivers 
to put down their cell phones and focus on the road. During one week of 
the pilot program in Hartford, police cited more that 2,000 drivers for 
talking on mobile phones and 200 more for texting while driving. With 
regard to the Fourth Amendment issues raised by OOIDA, enforcement 
activities related to the implementation of the final rule that involve 
acquisition of evidence will be governed by the principles established 
in judicial precedents interpreting and applying the Fourth Amendment 
and related statutory provisions, such as the Electronic Communications 
Privacy Act of 1986, Public Law No. 99-508, 100 Stat. 1848 (1986). It 
is FMCSA's view that these principles should address the concerns 
raised by OOIDA.
Penalties
    Several commenters said that the proposed penalties are not harsh 
enough. AIA stated that, since research shows that texting while 
driving can have an effect that is the same as or worse than severely 
intoxicated driving, the CDL penalties for texting should be identical 
to those applicable to intoxicated driving. On the other hand, TTD and 
ATU stated the proposal correctly sanctions CDL holders for texting 
while driving only when they are ``operating a CMV'' and not ``while 
operating a vehicle for which a CDL is not required.''
    FMCSA Response:
    FMCSA, to a degree, is constrained by the applicable statutes in 
establishing new CDL qualifications. Under 49 U.S.C. 31310(e), a CDL 
driver may only be disqualified for committing multiple violations of 
``serious traffic violations involving a commercial motor vehicle 
operated by the'' CDL driver. This has always been interpreted as 
requiring that the offense be committed while operating a CMV (see 49 
CFR 383.51, Table 2). This is the statutory authority that FMCSA must 
rely on to add texting while operating a CMV to the list of serious 
traffic violations to provide the basis for a possible disqualification 
of a CDL driver. On the other hand, a different statutory provision, 49 
U.S.C. 31310(g), requires longer disqualifications of a CDL driver with 
multiple convictions involving a motor vehicle (other than a CMV) of 
either: (1) A serious offense ``that has resulted in the revocation, 
cancellation, or suspension of the individual's license''; or (2) a 
``drug or alcohol related offense'' (Cf. 49 CFR 383.51, Table 2).
    FMCSA is unaware of any State law that provides for the revocation, 
cancellation, or suspension of a driver's

[[Page 59129]]

license when the driver is convicted of texting while driving a non-
CMV. Therefore, the longer disqualification period provided in Section 
31310(g) is not available for application to texting in violation of 
State or local traffic laws.
    Section 31310(e) does allow FMCSA to specify that the period of 
disqualification should be ``at least 60 days'' for obtaining two 
convictions within a 3-year period and ``at least 120 days'' for 
obtaining three or more convictions within a 3-year period. However, 
the Agency decided that the penalties for texting should be similar to 
the disqualification periods for other traffic violations already in 
place for CMV drivers. The Agency considered the severity of the 
penalties in the development of the NPRM. FMCSA based its decision on 
the level of severity of the current penalty for other serious 
violations such as reckless driving and speeding, as provided by 49 
U.S.C. 31310(e) and 49 CFR 383.51(c).
Use of Federal Civil Penalties and State Fines
    Some commenters, including the League of American Bicyclists, 
suggested that any fines collected be routed toward awareness programs, 
marketing campaigns, street safety, and targeted traffic enforcement. 
Others suggested providing the funds to infrastructure programs for 
other modes of transportation such as walking, cycling, and public 
transportation.
    FMCSA Response:
    While the Agency agrees with the view that bicyclists and 
pedestrians are vulnerable to distracted driving behaviors, the Agency 
does not have discretion in the use of Federal civil penalties. The 
Agency cannot control the use of funds collected by local enforcement 
agencies through fines received from traffic violations. Its authority 
to direct the use of fines and penalties collected by State and local 
enforcement agencies receiving MCSAP grants is limited to ensuring that 
the States provide ``satisfactory assurances the [State] has or will 
have the legal authority * * * necessary to enforce'' CMV safety 
regulations (49 U.S.C. 31102(b)(1)(C)). FMCSA is required by statute to 
deposit all civil penalties it collects in the Highway Trust Fund (49 
U.S.C. 521(b)(10)).
Data and Research on Texting by CMV Drivers
    While commenters generally agreed that existing research shows that 
texting may seriously compromise safety, some commenters found the 
existing research to be inadequate. Though ATA supported the NPRM, it 
commented that regulations should be based solely on research and 
facts. CVSA believed that there needs to be more research on the issue 
of distracted driving, especially as it relates to crashes and the 
different types of distractions--both technology- and non-technology-
related. TWU noted that the basis for this rule has been overall 
statistics, but not specific data on texting by CMV drivers.
    FMCSA Response:
    In response to the NPRM, the Agency did not receive any additional 
research data on texting from the public. The Agency reviewed existing 
research and other data and concluded that texting while driving is a 
dangerous activity. FMCSA has data on texting by CMV drivers, included 
in the VTTI study that FMCSA published in 2009, ``Driver Distraction in 
Commercial Vehicle Operations.'' FMCSA finds that the results from that 
study provide sufficient data to justify a prohibition against texting. 
The data demonstrate safety-critical events that occurred while texting 
by CMV drivers.
    There is no basis for deferring a ban against texting until 
additional research is completed. If the industry believes texting 
should be allowed under certain circumstances, the Agency welcomes the 
opportunity to engage in an open forum to identify those circumstances 
and the research which indicates that safety would not be compromised 
by the visual, cognitive, and manual distraction associated with 
texting. FMCSA notes that the VTTI study was peer reviewed. The study 
data highlighted the need for action rather than the need for 
additional research. Because limited CMV-specific data is available, 
the rule is based in part, but not entirely, on research studies of all 
driver types, as described extensively in both the NPRM and previously 
in this final rule. FMCSA supports further research that examines 
distracted driving by CMV drivers and DOT continues to conduct research 
on distracted driving.
Outreach
    FMCSA received multiple comments on the necessity of public 
education, outreach, and awareness campaigns. CVSA commented that 
safety efforts on distracted driving need to include enforcement, 
engineering, and education initiatives. CVSA stated that DOT and the 
appropriate modal administrations, as well as Transport Canada, will 
need to make adequate resources available to the States and other 
jurisdictions for enforcement and education activities. NSC urged FMCSA 
to support the rule's effectiveness with high-visibility enforcement 
campaigns, proven to reduce unsafe driver behaviors and boost 
compliance, in order to raise awareness, a necessary step with new 
rules and laws. Several commenters suggested that the Agency mandate 
certain training curricula and company policies in lieu of a 
prohibition.
    FMCSA Response:
    The Agency agrees that enforcement and outreach efforts are 
essential to increase public awareness. DOT campaigns, such as those 
addressing seat belt use and drunk driving, have proven to reduce 
injuries and fatalities. DOT already has in place campaigns to educate 
all vehicle drivers on distracted driving. Platforms for sharing 
information include the Web site http://www.Distraction.gov, as well as 
outreach on radio and television, which have proven to reduce unsafe 
driver behaviors and boost compliance awareness.
    For more information on research, outreach, and education, the 
reader may reference the National Highway Traffic Safety Administration 
(NHTSA) Driver Distraction Program. This program is a plan to 
communicate NHTSA's priorities to the public with regard to driver 
distraction safety challenges, focusing on the long-term goal of 
eliminating crashes that are attributable to distraction. The complete 
overview can be found at http://www.distraction.gov/files/dot/6835_
DriverDistractionPlan_4-14_v6_tag.pdf. The Secretary considers 
preventing distracted driving a priority for the Department and has put 
$50 million into his Fiscal Year 2011 Budget for education, awareness, 
and outreach.
Effect of a Texting Ban on Small Businesses
    OOIDA stated that FMCSA did not identify nor analyze the effect of 
the proposed rule on small businesses under the Regulatory Flexibility 
Act.
    FMCSA Response:
    As required by the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) the Agency conducted an economic analysis of the impact of this 
rule on small entities and certified that a Regulatory Flexibility 
Analysis is not necessary because the rule will not have a significant 
economic impact on a substantial number of small entities subject to 
the requirements of this rule (See the Final Regulatory Evaluation in 
the docket for this rulemaking).
Non-CMV Drivers
    Many commenters, including unions, trade associations and 
bicyclists suggested that this texting prohibition be applied to all 
vehicle drivers,

[[Page 59130]]

including passenger car drivers, motorcyclists, and bicyclists.
    FMCSA Response:
    While FMCSA agrees that no vehicle driver should text while 
driving, FMCSA is limited by its statutory authority in its ability to 
regulate distracted driving. The Agency's direct authority is limited 
to drivers of CMVs in interstate commerce (49 U.S.C. 31136(a)). The 
Agency cannot address any aspects of distracted driving by non-CMV 
drivers, motorcyclists, pedestrians, or bicyclists.
Limiting the Use of Cell Phones and Other Interactive Devices in CMVs
    Approximately 50 commenters requested a complete ban on cell phones 
while driving CMVs. Many commenters believed that other electronic 
devices should be limited in the current rule or recommended such a 
course for future rulemaking. There was also concern that the proposed 
rule might not go far enough in addressing broader issues related to 
distracted driving. While NTSB acknowledged that FMCSA views the 
prohibition of texting as a first step and plans to proceed with 
additional rulemaking on this issue in the near future, NTSB wanted to 
ensure that the larger issue of cell phone use by drivers of CMVs is 
adequately addressed.
    A number of comments addressed other electronic devices generally 
found in CMVs, such as citizens band radios, GPS devices, and laptop 
computers, and stated that they should be prohibited by FMCSA. TTD 
noted that FMCSA plans to address the use of other electronic devices 
in separate rulemaking proceedings, although they had concerns 
regarding motor vehicle operators who, they say, ``are often required 
to be dispatched by citizens band radio, global position devices, and 
other electronic technologies.''
    FMCSA Response:
    FMCSA acknowledges there are safety concerns about the level of 
distraction associated with cell phone use. Also, it is the subject of 
both an NTSB (H-06-27) and a MCSAC recommendation. The use of cell 
phones and other electronic devices by CMV drivers for functions other 
than texting, however, is outside the scope of consideration in this 
rulemaking. In order to address expeditiously the dangers of texting 
while driving and prevent future crashes, injuries, and fatalities, the 
Agency chose to first focus on texting, as an especially risky behavior 
that can cause physical, visual, and cognitive distraction. FMCSA will 
evaluate other aspects of distracted driving and consider future 
actions.
Disabling Cell Phones
    Many commenters suggested using technology to limit a driver's 
ability to operate a mobile telephone when driving by having the phone 
automatically disabled in a moving vehicle. CVSA stated that electronic 
devices, whether they are built into the dash or nomadic devices, need 
to have an ``in-motion'' mode to prevent their use (unless in emergency 
situations) during vehicle movement. CeRI commenters suggested 
requiring all cell phones to be programmed to shut down texting, e-
mail, and internet functions whenever the phone travels faster than 5 
or 10 miles per hour (mph) and stated that manufacturers should be 
required to add such functionality to all cell phones.
    FMCSA Response:
    Requiring that such capabilities be installed is beyond the scope 
of this rulemaking. However, carriers are free to explore and implement 
such capabilities as they see fit.

IV. Discussion of Rule

    The general structure of this final rule follows the outline 
contained in the NPRM (75 FR 16399). Any changes from the NPRM are 
described below.

Section-by-Section Analysis

Federal Prohibition Against Texting by Interstate CMV Drivers

Section 390.3
    The Agency determined that it has the authority to modify several 
regulatory exemptions in the FMCSRs, including one for school bus 
operations and one for CMVs designed or used to transport between 9 and 
15 passengers (including the driver), not for direct compensation (49 
CFR 390(f)(1) and (6)). This action is necessary for public safety 
regarding school bus transportation by interstate motor carriers. In 
addition, the Agency determined that the rule should apply to the 
operation by drivers of small-passenger carrying vehicles (designed to 
transport 9-15 passengers) that are not receiving direct compensation 
that are otherwise exempt from most of the FMCSRs under 49 CFR 
390.3(f)(6).
Section 390.5
    The Agency adds new definitions for the terms ``electronic device'' 
and ``texting,'' for general application. The definition of ``driving'' 
is incorporated into the prohibition of texting while driving a CMV in 
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. After consideration of the comments, the texting definition 
clarifies that any non-texting functions, which include functions on 
dispatching devices, fleet management systems, smart phones, and 
similar ``multi-function'' devices (e.g., Global Positioning System, 
hours of service tracking capabilities, and music playing), are not 
prohibited by this rulemaking.
Section 391.2
    FMCSA amends 49 CFR 391.2, which provides certain exceptions to the 
requirements of part 391 for custom farm operations, apiarian 
industries, and specific farm vehicle drivers, to enable the Agency to 
make violations of the Federal texting prohibition a disqualifying 
offense for such drivers. While the explicit Federal prohibition 
against texting applies 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 adds a new paragraph (e) to this section to provide for 
the disqualification of any driver convicted of two or more violations 
of the new prohibition set forth in Sec.  392.80 from operating a CMV 
in interstate commerce. The change mirrors the corresponding 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 are the same: 60 
days for the second offense within 3 years and 120 days for three or 
more offenses within 3 years. In addition, the first and each 
subsequent violation of such a prohibition are subject to civil 
penalties imposed on such drivers, in an amount up to $2,750 (49 U.S.C. 
521(b)(2)(A), 49 CFR 386.81 and App. B, ] A(4)).
Section 392.80
    In this section the Agency prohibits texting while driving a CMV, 
as defined in 49 CFR 390.5. In addition, the first and each subsequent 
violation of such a prohibition are subject to civil penalties imposed 
on such drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 
CFR 386.81 and App. B, ] A(4)). Furthermore, this rule states that 
motor carriers must not allow nor require drivers to text while 
driving. Employers

[[Page 59131]]

may also be subject to civil penalties in an amount up to $11,000 (49 
U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, paragraphs (a)(3) 
and (4)). FMCSA also includes a provision in this 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 are subject to the prohibition. FMCSA determined this rule is 
necessary for public safety regarding school bus transportation by 
interstate motor carriers. A definition of driving is included in the 
rule. In addition, the Agency applies the rule to the operation by 
drivers of small-passenger carrying vehicles (designed to transport 9-
15 passengers) that are not receiving direct compensation that are 
otherwise exempt from most of the FMCSRs under 49 CFR 390.3(f)(6).
    The rule provides for a limited exception to the texting while 
driving 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

Section 383.5
    FMCSA adds new definitions for the terms ``electronic device'' and 
``texting'' for application in part 383. The Agency adds 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 is not prohibiting the use of such devices by CMV drivers for 
purposes other than texting. The definition of texting identifies the 
type of activity that is covered by this rule.
Section 383.51
    In Table 2, FMCSA adds a new serious traffic violation that will 
result in a CDL driver being disqualified. This serious traffic 
violation is a conviction for violating a State or local law or 
ordinance prohibiting texting while driving a CMV. FMCSA adds 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 limit the types of violations 
that could result in a disqualification accordingly.
    Every State that issues CDLs is required to impose this 
disqualification on a driver required to have a CDL issued by that 
State whenever that CDL driver is convicted of the necessary number of 
violations (for 60 days for the second offense within 3 years and for 
120 days for 3 or more offenses within 3 years) while operating in 
States where such conduct is prohibited. This is the case even if the 
State issuing the disqualification does 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
    New paragraph (e) of Sec.  384.301 requires all States that issue 
CDLs to implement the new provisions in Sec.  383.51(c) that relate to 
disqualifying CDL drivers for committing the new serious traffic 
violation of texting while driving a CMV as soon as practicable, but 
not later than 3 years after the effective date of this regulation.

State Compatibility

Motor Carrier Safety Assistance Program (MCSAP)
    States that receive MCSAP grant funds are required, as a condition 
of receiving the grants, to adopt regulations on texting that are 
compatible with these final regulations (49 U.S.C. 31102(a) and 49 CFR 
350.201(a)). States under MCSAP will have to adopt regulations 
compatible with the prohibition on texting (in Sec.  392.80) and the 
related disqualification (in Sec.  391.15(e)) applicable to both 
interstate and intrastate transportation as soon as practicable, but 
not later than 3 years after the effective date of this regulation (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.
    Because States perform the overwhelming majority of commercial 
vehicle roadside inspections and perform all traffic stops, enforcement 
of the final rule would be carried out primarily by the States. The 
requirement for States to adopt and enforce compatible rules does not, 
in and of itself, establish enforcement priorities for States. Each 
year, States submit to FMCSA a Commercial Vehicle Safety Plan (CVSP) in 
which the States set safety performance goals and priorities. 
Therefore, FMCSA assumes that the adoption of compatible State rules 
would not necessarily result in increased enforcement costs. The States 
would include enforcement of a texting ban in their CVSPs as warranted 
by their analysis of truck and bus crash data, but they would not be 
required to prioritize enforcement based solely on the issuance of this 
rule. States that currently have texting prohibitions may not incur 
much in costs, whereas states that do not may have to allocate new 
resources and undertake new expenses. FMCSA did not quantify additional 
costs that these states might bear as a result of this rule. 
Participating States may use MCSAP grant money for enforcement of this 
rule.
CDL Program
    States that issue CDLs are required to adopt and implement the CDL 
disqualification provisions that require disqualification for two or 
more convictions of violating a State or local traffic 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 the effective 
date of these regulations. 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

    FMCSA amends the FMCSRs to restrict texting, including texting 
while using dispatching devices and fleet management systems, by 
certain drivers while operating CMVs in interstate commerce. The Agency 
also amends the FMCSRs to impose sanctions, including civil penalties 
and disqualification, on such drivers who do not comply with this final 
rule. The goal of the regulatory revision is to prevent or reduce the 
prevalence of truck and bus crashes, fatalities, and injuries on our 
Nation's highways due to texting while driving. In addition, the 
revisions will reduce the financial and environmental burdens 
associated with these crashes, and promote the efficient movement of 
traffic and commerce on interstate highways.
    Recent studies, including one commissioned by FMCSA, show that 
texting is among the riskiest behaviors of the distracting activities 
that are undertaken by CMV drivers. Because texting while driving is a 
fairly recent phenomenon, empirical research on its

[[Page 59132]]

impact on safety is limited. FMCSA carefully evaluated all available 
national-level crash data and found the data do show that distracted 
driving often results in crashes. While these data do not identify the 
number of fatalities or crashes attributable to texting, there are 
numerous studies on driver distraction in general. FMCSA analyzed those 
studies and found that many of their findings can be applied as a 
supplementary explanation to a texting prohibition. With regard to the 
current data on texting, the regulatory analysis focuses on one 
particular study--``Driver Distraction in Commercial Vehicle 
Operations'' (VTTI Study)--which, though limited in scope and 
application, does shed light on the potential harm of texting while 
driving CMVs.
    Currently, FMCSA does not have sufficient data that show an 
explicit empirical link between texting and CMV crashes. Therefore, the 
Agency exercised its professional judgment consistent with Office of 
Management and Budget Circular A-4 (``Regulatory Analysis'') and 
conducted a threshold analysis. A threshold or break-even analysis is 
called for when it is impossible, or difficult, to express in monetary 
units all of the important benefits and costs of a rule. The most 
efficient alternative will not necessarily be the one with the largest 
quantified and monetized net-benefit estimate. In such cases, the 
Agency is required to make a determination of how important the non-
quantified benefits or costs may be in the context of the overall 
analysis. The threshold analysis approach therefore 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 to yield zero net benefits (i.e., break even)?
    This regulatory evaluation considers the following potential costs: 
(a) Loss in carrier productivity due to time spent while parking or 
pulling over to the side of the roadway to perform texting activities; 
(b) increased fuel usage due to idling as well as exiting and entering 
the travel lanes of the roadway; (c) increased crash risk due to CMVs 
that are parked on the side of the roadway and exiting and entering the 
travel lanes of the roadway; and (d) costs to the States.
    The Agency estimates that this rule will cost $3.8 million 
annually. Current guidance from the Office of the Secretary of 
Transportation (OST) places the value of a statistical life at $6.0 
million. Consequently, the texting restriction would have to eliminate 
at most one fatality every year in order for the benefits of this rule 
to at least equal the costs. Given the unchecked expansion of texting, 
FMCSA believes the rule will save lives and prevent a substantial 
number of crashes. Therefore, the rule is justified based on the safety 
benefits. The table below presents a summary of the estimated costs of 
this rule and a threshold analysis of the number of fatalities that 
would need to be avoided in order to break even.

          Summary of Costs and Threshold Analysis (First Year)
------------------------------------------------------------------------

------------------------------------------------------------------------
Lost Carrier Productivity (millions)...........................     $0.3
Increased Fuel Consumption (millions)..........................     $1.1
Parking, Entering, and Exiting Roadway Crashes (millions)......     $0.2
Costs to the States............................................    *$2.2
----------------------------------------------------------------
    Total Costs................................................     $3.8
------------------------------------------------------------------------
Benefit of Eliminating One Fatality (millions).................     $6.0
Break-even Number of Lives Saved...............................       <1
------------------------------------------------------------------------
* One-time cost.

    The productivity losses, as well as other costs, were estimated for 
only one year, as the entire threshold analysis was performed as an 
undiscounted annual estimation. The loss of productivity is expected to 
diminish, (but not necessarily vanish within one year), as the motor 
carrier industry adjusts to the texting restriction and as new 
(permissible) technologies arise that compensate for the loss of the 
texting functionality. FMCSA is unaware of the specific future 
technologies that might arise, but we continue to research and monitor 
technological changes in the market.
    States are responsible for adopting compatible State rules within 
three years of the date of the final rule. Because States perform the 
overwhelming majority of commercial vehicle roadside inspections and 
perform all traffic stops, enforcement of the final rule would be 
carried out primarily by the States. The requirement for States to 
adopt and enforce compatible rules does not, in and of itself, 
establish enforcement priorities for States. Each year, States submit 
to FMCSA a Commercial Vehicle Safety Plan (CVSP) in which the States 
set safety performance goals and priorities. Therefore, FMCSA assumes 
that the adoption of compatible State rules would not necessarily 
result in increased enforcement costs. The States would include 
enforcement of a texting ban in their CVSPs as warranted by their 
analysis of truck and bus crash data, but they would not be required to 
prioritize enforcement based solely on the issuance of this rule. 
States that currently have texting prohibitions may not incur much in 
costs, whereas states that do not may have to allocate new resources 
and undertake new expenses. FMCSA did not quantify additional costs 
that these states might bear as a result of this rule. Participating 
States may use MCSAP grant money for enforcement of this rule.
    FMCSA also conducted a 10-year annualized projection of the 
discounted costs and benefits of the rule, in which the benefits are 
simply the value of statistical life saved (i.e., $6 million). The 
results, summarized below, show that the net benefits, under both a 3% 
discount rate and a 7% discount rate, are positive.

                                        Summary of Estimated Net Benefits
----------------------------------------------------------------------------------------------------------------
                                                                    3% discount rate         7% discount rate
                      10-Year discounting                              (millions)               (millions)
----------------------------------------------------------------------------------------------------------------
Total Costs...................................................                    $15.7                    $14.0
Total Benefits*...............................................                     52.7                     45.0
Net Benefits..................................................                     37.0                     31.0
----------------------------------------------------------------------------------------------------------------
* $6 million VSL.

    FMCSA also conducted a sensitivity analysis (the details of which 
are contained in Appendix A of the regulatory evaluation) whereby the 
extent of texting while using a dispatching device or fleet management 
system is varied. The results of that analysis show an estimated 
minimum total cost of this rule of approximately $1.4 million and an 
estimated maximum total cost of approximately $2.0 million.

[[Page 59133]]

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

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

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. DOT policy also 
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 rule 
on small entities and certifies that a Regulatory Flexibility Analysis 
is not necessary because the rule will not have a significant economic 
impact on a substantial number of small entities subject to the 
requirements of this rule. This rulemaking will affect all of the 
approximately 493,480 \27\ small entities. However, the direct costs of 
this rule that small entities may incur are only expected to be 
minimal. They consist of the costs of lost productivity from foregoing 
texting while on duty and fuel usage costs for pulling to the side of 
the road to idle the truck or passenger-carrying vehicle and send or 
receive a text message. The majority of motor carriers are small 
entities. Therefore, FMCSA will use the total cost of the rule in the 
first year ($3.8 million) applied to the number of small entities 
(493,480) as a worst case evaluation which would average $7.70 per 
carrier. In subsequent years, the cost of the rule per carrier is 
estimated to be $3.30.
---------------------------------------------------------------------------

    \27\ This number represents 99% of 498,465, the current number 
of interstate motor carriers with recent activity (source: MCMIS 
data 6/17/2010).
---------------------------------------------------------------------------

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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the 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 this 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 $140.8 million (which is the 
value of $100 million in 2009 after adjusting for inflation) or more in 
any 1 year. Though this rule would not result in such expenditure, 
FMCSA discusses the effects of this rule elsewhere in this preamble.

Paperwork Reduction Act

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

Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis (PTA) for the 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, on the relationship between the national government and 
the States, or on the distribution of powers and responsibilities among 
the various levels of government.
    FMCSA recognizes that, as a practical matter, this rule may have an 
impact on the States. Accordingly, the Agency sought advice from the 
National Governors Association (NGA), NCSL, and the American 
Association of Motor Vehicle Administrators (AAMVA) on the topic of 
texting by letters dated December 18, 2009. (A copy of these letters is 
available in the docket for this rulemaking). In addition, FMCSA met 
with representatives from NGA, NCSL, and AAMVA on February 3, 2010, to 
discuss FMCSA's rulemaking initiatives. The State interests that met 
with FMCSA did not express any concerns, then or later, with the 
proposed course of action, and did not file any comments.
    For a full discussion of any preemption issues, see section III. 
Discussion of Comments, Preemption of State and Local Laws.

Executive Order 12630 (Taking of Private Property)

    This 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 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 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 rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA

[[Page 59134]]

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 rule 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. FMCSA finds 
the impacts to the environment do not warrant the more extensive EIS, 
thus FMCSA issues a Finding of No Significant Impact (FONSI). The 
findings of the 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 has also analyzed this rule under section 176(c) of the Clean 
Air Act (CAA), as amended (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 is 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 for CMV drivers and establishes a procedure for 
disqualification.

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.

0
For the reasons discussed in the preamble, FMCSA amends 49 CFR parts 
383, 384, 390, 391, and 392 as follows:

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

0
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.

0
2. Amend Sec.  383.5 by adding the following definitions in 
alphabetical order.


Sec.  383.5  Definitions.

* * * * *
    Electronic device includes, but is not limited to, a cellular 
telephone; personal digital assistant; pager; computer; or any other 
device used to input, write, send, receive, or read text.
* * * * *
    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) Inputting, selecting, or reading information on a global 
positioning system or navigation system; or
    (iii) Using a device capable of performing multiple functions 
(e.g., fleet management systems, dispatching devices, smart phones, 
citizens band radios, music players, etc.) for a purpose that is not 
otherwise prohibited in this part.
* * * * *

0
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) * * *

[[Page 59135]]



                                            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, as defined in 49 CFR 390.5,
  and has halted in a location where the vehicle can safely remain stationary.

* * * * *

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

0
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.

0
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 October 27, 2010 
as soon as practical, but not later than October 28, 2013.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
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.

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


Sec.  390.3  General applicability.

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

0
8. Amend Sec.  390.5 by adding the following definitions in 
alphabetical order.


Sec.  390.5  Definitions.

* * * * *
    Electronic device includes, but is not limited to, a cellular 
telephone; personal digital assistant; pager; computer; or any other 
device used to input, write, send, receive, or read text.
* * * * *
    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) Inputting, selecting or reading information on a global 
positioning system or navigation system; or
    (iii) Using a device capable of performing multiple functions 
(e.g., fleet management systems, dispatching devices, smart phones, 
citizens band radios, music players, etc.) for a purpose that is not 
otherwise prohibited in part 392.
* * * * *

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

0
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.

0
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.

[[Page 59136]]

    (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.

0
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 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 
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

0
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.

0
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 moved the vehicle to the side of, or off, a highway, as defined 
in 49 CFR 390.5, and halted in a location where the vehicle can safely 
remain stationary.
    (d) Exceptions. (1) School bus operations and vehicles designed or 
used to transport 9 to 15 passengers, including the driver, not for 
direct compensation. The provisions of Sec.  390.3(f)(1) and (6) are 
not applicable to this section.
    (2) Emergency Use. Texting while driving is permissible by drivers 
of a commercial motor vehicle when necessary to communicate with law 
enforcement officials or other emergency services.

    Issued on: September 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-23861 Filed 9-24-10; 8:45 am]
BILLING CODE 4910-EX-P

