Limiting the Use of Wireless Communication Devices, 59118-59136 [2010-23861]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Rules and Regulations]
[Pages 59118-59136]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23861]


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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 https://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: https://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: https://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: https://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: https://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: https://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: https://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: https://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: https://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: https://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: https://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: https://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. https://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: https://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 
(https://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