Drivers of CMVs: Restricting the Use of Cellular Phones, 80014-80033 [2010-31736]

Download as PDF 80014 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384, 390, 391, and 392 [Docket No. FMCSA–2010–0096] RIN 2126–AB29 Drivers of CMVs: Restricting the Use of Cellular Phones Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking; request for comments. AGENCY: The Federal Motor Carrier Safety Administration (FMCSA) proposes to restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in interstate commerce. The Agency proposes new driver disqualification sanctions for interstate drivers of CMVs who fail to comply with this Federal restriction and new driver disqualification sanctions for commercial driver’s license (CDL) holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of handheld mobile telephones. Additionally, interstate motor carriers would be prohibited from requiring or allowing drivers of CMVs to engage in the use of a hand-held mobile telephone while operating in interstate commerce. This rulemaking would improve safety on the Nation’s highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving drivers of CMVs. DATES: FMCSA will be accepting both initial comments and reply comments in response to this Notice of Proposed Rulemaking (NPRM). Send your initial comments on or before February 22, 2011 and reply comments on or before March 21, 2011. Initial comments may address any issue raised in the NPRM and the background documents in the docket (e.g., regulatory evaluation, studies, environmental assessment, etc.). Initial comments will be made available promptly electronically, online on http://www.regulations.gov, or for public inspection 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. In order to allow sufficient opportunity for interested parties to prepare and submit any reply comments, late-filed initial jlentini on DSKJ8SOYB1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 comments will not be considered. Reply comments must address only matters raised in initial comments and must not be used to present new arguments, contentions, or factual material that is not responsive to the initial comments. ADDRESSES: You may submit comments and reply comments identified by docket number FMCSA–2010–0096 using any one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. • Fax: 202–493–2251. • Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590– 0001. • Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions about this proposed rule, contact Mr. Brian Routhier, Transportation Specialist, Federal Motor Carrier Safety Administration, Vehicle and Roadside Operation Division, at 202–366–4325 or FMCSA_MCPSV@dot.gov. SUPPLEMENTARY INFORMATION: Table of Contents for Preamble I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Abbreviations III. Background A. Rationale for the Scope of the Proposed Rule B. Legal Authority C. Support for a Restriction on Mobile Telephones D. Studies of Mobile Telephone Use While Driving E. Existing Mobile Telephone Bans by Federal, State, and Local Governments IV. Discussion of Proposed Rule V. Regulatory Analyses I. Public Participation and Request for Comments FMCSA encourages you to participate in this rulemaking by submitting comments, reply comments, and related materials. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you provide. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 A. Submitting Comments If you submit a comment or a reply comment, please include the docket number for this rulemaking (FMCSA– 2010–0096), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. To submit your comment or reply comments online, go to http:// www.regulations.gov and click on the ‘‘submit a comment’’ box, which will then become highlighted in blue. In the ‘‘Document Type’’ drop down menu, select ‘‘Proposed Rules,’’ insert ‘‘FMCSA–2010–0096’’ in the ‘‘Keyword’’ box, and click ‘‘Search.’’ When the new screen appears, click on ‘‘Submit a Comment’’ in the ‘‘Actions’’ column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81⁄2; by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. B. Viewing Comments and Documents To view comments or reply comments, as well as any documents mentioned in this preamble, go to http://www.regulations.gov and click on the ‘‘read comments’’ box in the upper right hand side of the screen. Then, in the ‘‘Keyword’’ box insert ‘‘FMCSA– 2010–0096’’ and click ‘‘Search.’’ Next, click the ‘‘Open Docket Folder’’ in the ‘‘Actions’’ column. Finally, in the ‘‘Title’’ column, click on the document you would like to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12–140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. C. Privacy Act Anyone is able to search the electronic form of all comments E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules hands off the wheel), cognitive (thinking about something other than the road/ driving), and auditory (listening to someone talking). Research shows that using a hand-held mobile telephone while driving may pose a higher safety risk than other activities (e.g. eating and writing on a pad) because it involves all four types of driver distraction. For example, reaching for and dialing a II. Abbreviations mobile telephone are both visual and AAMVA American Association of Motor Ve- manual distractions. Using a hand-held mobile telephone may reduce a driver’s hicle Administrators ABA American Bus Association situational awareness, decision making, AdvoAdvocates for Highway and Auto or performance; and it may result in a cates Safety crash, near-crash, unintended lane ATA American Trucking Associations, departure by the driver, or other unsafe Inc. driving action. This rulemaking APTA American Public Transportation Asproposes to restrict the use of hand-held sociation mobile telephones because our research CDL Commercial Driver’s License indicates that they are a source of driver CMV Commercial Motor Vehicle distraction that could pose a safety risk. CTA Chicago Transit Authority DOT United States Department of Trans- Specifically it would prohibit a CMV portation driver from reaching for, holding, or EA Environmental Assessment dialing a mobile telephone in order to EIS Environmental Impact Statement conduct a voice communication while FCC Federal Communications Commisdriving. Essentially, the CMV driver sion FMCSA Federal Motor Carrier Safety Ad- must be ready to conduct a voice communication in compliance with the ministration FMCSFederal Motor Carrier Safety Regu- proposed rule the moment he begins driving the vehicle. Rs lations FONSI Finding of No Significant Impact In an effort to understand and FR Federal Register mitigate crashes associated with driver FRA Federal Railroad Administration distraction, the U.S. Department of GCRTA Greater Cleveland Regional Transit Transportation (DOT) conducted Authority research concerning behavioral and MBTA Massachusetts Bay Transportation vehicle safety countermeasures to driver Authority 1 MCSAC Motor Carrier Safety Advisory Com- distraction. Data from studies indicate that both reaching for and dialing a mittee MCSAP Motor Carrier Safety Assistance mobile telephone increase the odds of Program involvement in a safety-critical event NAICS North American Industry Classifica- such as a crash, near crash, or tion System unintended lane departure.2 Both NCSL National Conference of State Legis- reaching for and dialing a hand-held latures mobile telephone are manual NGA National Governors Association distractions (i.e., hands-off wheel) and NPRM Notice of Proposed Rulemaking require substantial visual distraction NSC National Safety Council received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s Privacy Act Statement for the Federal Docket Management System published in the Federal Register on January 17, 2008 (73 FR 3316). NTSB OOIDA OMB PAR PDA TCA VTTI National Transportation Safety Board Owner-Operator Independent Drivers Association Office of Management and Budget Population Attributable Risk Personal Digital Assistant Truckload Carriers Association Virginia Tech Transportation Institute jlentini on DSKJ8SOYB1PROD with PROPOSALS III. Background A. Rationale for the Scope of the Proposed Rule 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. Researchers classify distraction into several categories: Visual (taking one’s eyes off the road), manual (taking one’s VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 1 Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. (2009) Driver distraction in commercial vehicle operations. (Document No. FMCSA–RRR–09–042) Washington, DC: Federal Motor Carrier Safety Administration, July 2009. Retrieved October 20, 2009, from http:// www.fmcsa.dot.gov/facts-research/art-publicreports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010). Distraction in Commercial Trucks and Buses: Assessing Prevalence and Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: Federal Motor Carrier Safety Administration. 2 In popular usage, mobile telephones are often referred to as ‘‘cell phones.’’ As explained later in the NPRM, a variety of different technologies are licensed by the Federal Communications Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; thus, the proposed rules here would apply to the range of technologies used to provide wireless telephone communications and the rule uses the broader term ‘‘mobile telephones.’’ However, some of the materials discussed in this preamble use the popular term ‘‘cell phone,’’ and the discussion continues that usage in such cases. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 80015 (i.e., eyes off forward roadway) to complete the task; therefore the driver may not be capable of safely operating the vehicle. According to a VTTI study, the odds of being involved in a safety-critical event are three times greater when the driver is reaching for an object than when the driver is not reaching for an object. The odds of being involved in a safety-critical event are six times greater while the driver is dialing a cell phone than when the driver is not dialing a cell phone. These increases in risk are primarily attributable to the driver’s eyes being off the forward roadway. Additionally, these activities have high population attributable risk (PAR) percentages (i.e., an activity, which if not undertaken, would increase safety most).3 The PAR percentage for reaching for an object was the highest in the study at 7.6 percent. Because of the physical, manual, and visual distractions and the data indicating a safety risk associated with the use of hand-held mobile telephones, FMCSA believes it is in the interest of public safety to propose, at a minimum, a restriction on hand-held mobile telephone use while driving a CMV. Other governmental entities have made recommendations on mobile telephone use that go beyond our proposed rule. The National Transportation Safety Board (NTSB) determined that one probable cause of a November 2004 bus crash was the use of a hands-free cell phone. This crash was the impetus for an NTSB investigation (NTSB/HAR–06/04 PB2007–916201) and a subsequent recommendation to FMCSA that the Agency prohibit cell phone use by all passenger-carrying CMVs.4 FMCSA also received recommendations on cell phone use from its Motor Carrier Safety Advisory Committee (MCSAC). One of MCSAC’s recommendations for the National Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to ban the use of hand-held and hands-free mobile telephones while driving. However, it is not clear if simply talking on a mobile telephone presents a significant risk. For example, the same VTTI study that detailed the risks of reaching and dialing found that ‘‘talking 3 See Section D. Studies of Mobile Telephone Use While Driving for a full discussion. 4 National Transportation Safety Board (2006) Motorcoach Collision with the Alexandria Avenue Bridge Overpass, George Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR–06/04; NTIS report number PB2007–916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/ HAR0604.pdf. E:\FR\FM\21DEP1.SGM 21DEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS 80016 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules or listening to a hands-free phone’’ and ‘‘talking or listening to a hand-held phone’’ were relatively low risk activities and had only brief periods of eyes off forward roadway. It is the action of taking one’s eyes off the forward roadway to reach for and dial the mobile telephone that is highly risky. Therefore, our proposal does not go as far as the NTSB and MCSAC recommendations. While some States have gone further than this proposed restriction on handheld mobile telephones, no State has completely banned mobile telephone use. Nine States and the District of Columbia have traffic laws prohibiting all motor vehicle drivers from using a hand-held mobile telephone while driving. Some States have gone further for certain categories of drivers. Nineteen States and the District of Columbia prohibit the use of all mobile telephones while driving a school bus. Transit bus and motorcoach drivers are the focus of stricter mobile telephone rules in some States and local jurisdictions.5 This NPRM, which proposes to restrict hand-held mobile telephone use by all CMV drivers, is in line with existing regulations that hold CMV drivers to higher standards. This rulemaking would improve safety on the Nation’s highways by reducing the prevalence of, or preventing, certain truck- and busrelated crashes, injuries, and fatalities associated with distracted driving. Our proposal would restrict hand-held mobile telephone use, but the Agency requests comment on whether we should implement in full the NTSB and MCSAC recommendations. The Agency requests public comment on the feasibility, operational impact, and safety benefits of prohibiting hands-free mobile telephone technology by drivers of CMVs as well. Because the Agency does not intend that this rulemaking preclude the use of innovative technologies that could be safely used by CMV drivers to facilitate mobile telephone use, the Agency will consider, through this rulemaking process, all information from interested parties, as it assesses the risks, feasibility, and safety of adopting an approach in the final rule. Public comment on these issues should also recognize our responsibility to ensure that CMV drivers are held to the highest degree of safety. B. Legal Authority The authority for this proposed rule derives from the Motor Carrier Safety 5 IIHS list of cellphone laws. http://www.iihs.org/ laws/cellphonelaws.aspx VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the Commercial Motor Vehicle Safety Act of 1986 (1986 Act), 49 U.S.C. chapter 313. The 1984 Act (Pub. L. 98–554, Title II, 98 Stat. 2832, Oct. 30, 1984) provides authority to regulate the safety of operations of CMV drivers and motor carriers and vehicle equipment. It requires the Secretary of Transportation (Secretary) to ‘‘prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.’’ Although this authority is very broad, the 1984 Act also includes specific requirements in 49 U.S.C. 31136(a): At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators. This proposed rule is based primarily on 49 U.S.C. 31136(a)(1), which requires regulations that ensure that CMVs are operated safely, and secondarily on section 31136(a)(2), to the extent that drivers’ use of mobile telephones might impact their ability to operate CMVs safely. This NPRM does not address the physical condition of drivers (49 U.S.C. 31136(a)(3)), nor does it impact possible physical effects caused by driving CMVs (49 U.S.C. 31136(a)(4)). The relevant provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR subtitle B, chapter III, subchapter B) apply to CMV drivers and employers operating a CMV included in the statutory authority of the 1984 Act. The 1984 Act defines a CMV as a self-propelled or towed vehicle used on the highways to transport persons or property in interstate commerce; and that either: (1) Has a gross vehicle weight/gross vehicle weight rating of 10,001 pounds or greater; (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) is designed or used to transport more than 15 passengers, not for compensation; or (4) is transporting any quantity of hazardous materials requiring placards to be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating CMVs are subject to the FMCSRs, except those who are employed by Federal, State, or local governments (49 U.S.C. 31132(2)). The proposed rule would also require PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 employers to ensure their drivers comply with the restrictions on use of hand-held mobile telephones while driving CMVs. In addition to the statutory exemption for government employees, there are several regulatory exemptions in the FMCSRs that are authorized under the 1984 Act, including, among others, one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver) not for direct compensation (49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only applies to interstate transportation of school children and/or school personnel between home and school. This particular exemption is not based on any statutory provisions, but is instead a discretionary rule promulgated by the Agency. Therefore, FMCSA has authority to modify the exemption. Modification of the school bus operations exemption requires the Agency to find that such action ‘‘is necessary for public safety, considering all laws of the United States and States applicable to school buses’’ (former 49 U.S.C. 31136(e)(1)).6 Likewise, FMCSA has authority to modify the nonstatutory exemption for small, passenger-carrying vehicles not for direct compensation, but is not required to comply with former 49 U.S.C. 31136(e).7 FMCSA is proposing to apply restrictions on hand-held mobile telephone use to both school bus operations by private operators in interstate commerce and small passenger-carrying vehicles not for direct compensation, although they would continue to be exempt from the rest of the FMCSRs. Other than transportation covered by statutory 6 Former section 31136(e)(1) was amended by section 4007(c) of the Transportation Equity Act for the 21st Century, Public Law 105–178, 112 Stat. 107, 403 (June 9, 1998) (TEA–21). However, TEA– 21 also provides that the amendments made by section 4007(c) ‘‘shall not apply to or otherwise affect a waiver, exemption, or pilot program in effect on the day before the date of enactment of [TEA–21] under * * * section 31136(e) of title 49, United States Code.’’ (Section 4007(d), TEA–21, 112 Stat. 404 (set out as a note under 49 U.S.C. 31136).) The exemption for school bus operations in 49 CFR 390.3(f)(1) became effective on November 15, 1988, and was adopted pursuant to section 206(f) of the 1984 Act, later codified as section 31136(e) (Federal Motor Carrier Safety Regulations; General, 53 FR 18042–18043, 18053 (May 19, 1988) and section 1(e), Public Law 103–272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by FMCSA affecting the school bus operations exemption would require the Agency to comply with former section 31136(e)(1). 7 The exemption in 49 CFR 390.3(f)(6) was not adopted until 2003, after the enactment of TEA–21, in a final rule titled, ‘‘Safety Requirements for Operators of Small Passenger-Carrying Commercial Motor Vehicles Used In Interstate Commerce’’ (68 FR 47860, August 12, 2003). E:\FR\FM\21DEP1.SGM 21DEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules exemptions, FMCSA has authority to restrict the use of mobile telephones by drivers operating CMVs. For any violation, such a restriction may be subject to civil penalties 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), and were recently adopted by the Agency in its final rule prohibiting texting by CMV drivers while operating in interstate commerce (49 CFR 391.15(e); 75 FR 59118, September 27, 2010). In summary, both a restriction on the use of hand-held mobile telephones and associated sanctions, including civil penalties and disqualifications, are authorized by statute and regulation for operators of CMVs, as defined above, in interstate commerce, with limited exceptions. But before prescribing any regulations under the 1984 Act, FMCSA must consider their costs and benefits (49 U.S.C. 31136(c)(2)(A)). The 1986 Act (Title XII of Pub. L. 99– 570, 100 Stat. 3207–170, Oct. 27, 1986), which authorized creation of the CDL program, is the primary basis for licensing programs for certain large CMVs. There are several key distinctions between the authority conferred under the 1984 Act and that under the 1986 Act. First, the CMV for which a CDL is required is defined under the 1986 Act, in part, as a motor vehicle operating ‘‘in commerce,’’ a term separately defined to cover broadly both interstate commerce and operations that ‘‘affect’’ interstate commerce (49 U.S.C. 31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle used in commerce to transport passengers or property that: (1) Has a gross vehicle weight/gross vehicle weight rating of 26,001 pounds or greater; (2) is designed to transport 16 or more passengers including the driver; or (3) is used to transport certain quantities of ‘‘hazardous materials,’’ as defined in 49 CFR 383.5 (49 U.S.C. 31301(4)). In addition, a provision in the FMCSRs implementing the 1986 Act recognizes that all school bus drivers (whether government employees or not) and other government employees operating vehicles requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or designed to transport 16 or more passengers) are subject to the CDL standards set forth in 49 CFR 383.3(b). VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 There are several statutory and regulatory exceptions from the CDL requirements, which include the following individuals: Military service members who operate a CMV for military purposes (a mandatory exemption for the States to follow) (49 CFR 383.3(c)); farmers; firefighters; CMV drivers employed by a unit of local government for the purpose of snow/ice removal; and persons operating a CMV for emergency response activities (all of which are permissive exemptions for the States to implement at their discretion) (49 CFR 383.3(d)). States may also issue certain restricted CDLs to other categories of drivers under 49 CFR 383.3(e)-(g). Drivers with such restricted CDLs may still be covered by a disqualification under the 1986 Act arising from the use of hand-held mobile telephones while driving CMVs. The 1986 Act does not expressly authorize the Agency to adopt regulations governing the safety of CMVs operated by drivers required to obtain a CDL. Most of these drivers (those involved in interstate trade, traffic, or transportation) are subject to safety regulations under the 1984 Act, as described above. The 1986 Act, however, does authorize disqualification of CDL drivers by the Secretary. It contains specific authority to disqualify CDL drivers for various types of offenses, whether those offenses occur in interstate or intrastate commerce. This authority exists even if drivers are operating a CMV illegally because they did not obtain a CDL. In general, the 1986 Act explicitly identifies several ‘‘serious traffic violations’’ as grounds for disqualification (49 U.S.C. 31301(12) and 31310). In addition to the specifically enumerated ‘‘serious traffic violations,’’ the 1986 Act provides related authority that allows FMCSA to designate additional serious traffic violations by rulemaking if the underlying offense is based on the CDL driver committing a violation of a ‘‘State or local law on motor vehicle traffic control’’ (49 U.S.C. 31301(12)(G)). The FMCSRs state, however, that unless and until a CDL driver is convicted of the requisite number of specified offenses within a certain time frame (described below), the required disqualification may not be applied (49 CFR 383.5 (defining ‘‘conviction’’ and ‘‘serious traffic violation’’) and 383.51(c)). Under the statute, a driver who commits two serious traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 60 days (49 U.S.C. 31310(e)(1)). A driver who commits three or more serious PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 80017 traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile telephones results in distracted driving and increases the risk of CMV crashes, fatalities, and injuries, FMCSA is now proposing that violations by a CDL driver of State or local law or ordinance on motor vehicle traffic control that restricts the use of such mobile telephones while driving CMVs should result in a disqualification under this provision. FMCSA is authorized to carry out these statutory provisions by delegation from the Secretary as provided in 49 CFR 1.73(e) and (g). C. Support for a Restriction on Mobile Telephones There is an overwhelming amount of public support for reducing distracted driving, including hand-held mobile telephone use, while operating a CMV. It is likely that most motorists either have first-hand experience with or know someone who had a motor vehicle crash or near-crash event involving a distracted driver. There appears to be a steady increase in the use of electronic devices. Moreover, as outlined in the examples below, there is some evidence that CMV crashes and other incidents have been caused by the use of electronic devices. FMCSA is aware of several recent CMV crashes in which the use of a mobile telephone may have contributed to the crash. In one case, according to media reports, a truck driver from Arkansas told police she was talking on her cell phone when she became involved in a crash that killed two boys on May 9, 2010. In another media report, on March 26, 2010, a tractor trailer crossed the median strip of Interstate 65 in central Kentucky and collided with a van transporting 9 adults, two children, and an infant. All the adults and the infant in the van and the truck driver were killed. The NTSB is conducting an investigation into the crash, including attempting to determine if a mobile telephone was a factor in the crash.8 According to media reports, in February 2010, a Montgomery County, Pennsylvania, school bus driver was allegedly talking on his cell phone before a deadly crash.9 In light of these incidents and the potential for more crashes due to 8 http://www.ntsb.gov/Pressrel/2010/100514.html. 9 Driver To Stand Trial In Fatal School Bus Crash. (April 20, 2010) Philadephia, PA: KYW–TV. Retrieved from the CBS3 Web site, July 21, 2010, from: http://cbs3.com/local/montgomery.county. school.2.1645628.html. E:\FR\FM\21DEP1.SGM 21DEP1 80018 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules distracted driving, FMCSA proposes restrictions on the use of hand-held mobile telephones. We are requesting comments on whether to propose a complete prohibition on mobile telephone use by drivers of CMVs. We have included in this NPRM information on research studies as well as the positions of safety organizations and industry on the use of mobile telephones by CMV drivers. jlentini on DSKJ8SOYB1PROD with PROPOSALS National Transportation Safety Board Recommendation On November 14, 2004, a motorcoach crashed into a bridge overpass on the George Washington Memorial Parkway in Alexandria, Virginia. The National Transportation Safety Board (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. This crash was the impetus for an NTSB investigation (NTSB/HAR–06/04 PB2007–916201) and a subsequent recommendation to FMCSA regarding cell phone use by passenger-carrying CMVs.10 This rulemaking addresses part of this outstanding recommendation. 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’’ (VTTI Study (2009)) was published on October 1, 2009. This report is summarized in section D. Also in 2004, the NTSB investigated a truck-tractor median crossover crash in Sherman, Texas, that resulted in a collision and fire. The NTSB’s report cited one probable cause as the driver’s attempted or imminent use of a wireless device as a distraction from his driving duties. The Agency will post in the rulemaking docket any additional information it obtains about these 10 National Transportation Safety Board (2006) Motorcoach Collision with the Alexandria Avenue Bridge Overpass, George Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR–06/04; NTIS report number PB2007–916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/ HAR0604.pdf. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 investigations that might not be generally available to the public. FMCSA’s Motor Carrier Safety Advisory Committee’s Recommendation Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), Public Law 109–59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to establish a Motor Carrier Safety Advisory Committee (MCSAC). The committee provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and regulations and operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2). In MCSAC’s March 27, 2009, report to FMCSA titled ‘‘Developing a National Agenda for Motor Carrier Safety,’’ MCSAC recommended that FMCSA adopt new Federal rules concerning distracted driving.11 MCSAC reported, ‘‘Documented research shows that there are cognitive distractions and increases in crashes from cellular phone use and text messaging.’’ Therefore, one of MCSAC’s recommendations for the National Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to ban the use of hand-held and hands-free mobile telephones while driving. Motorcoach Safety Action Plan In the November 2009 DOT Motorcoach Safety Action Plan, DOT identified seven priority action items that will have the greatest impact in reducing motorcoach crashes, injuries, and fatalities. One of these is a recommendation to initiate rulemaking to propose prohibiting texting and limiting the use of mobile telephones and other devices by motorcoach drivers.12 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 the need and widespread support for a ban against texting and mobile telephone use while driving. Attendees 11 Parker, David R., Chair, Motor Carrier Safety Advisory Committee (March 27, 2009). Letter to Rose A. McMurray, Acting Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor Vehicle Safety. Retrieved July 23, 2010, from: http://mcsac.fmcsa.dot.gov/documents/ MCSACTask09-01FinalReportandLetterto Administrator090428.pdf. 12 U.S. Department of Transportation (November 2009). Motorcoach Safety Action Plan. (DOT HS 811 177). Retrieved July 23, 2010, from: http://www. fmcsa.dot.gov/documents/safety-security/ MotorcoachSafetyActionPlan_finalreport-508.pdf. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 included safety experts; researchers; elected officials, including four U.S. Senators and several State legislators; safety advocacy groups; senior law enforcement officials; and representatives of the telecommunications and transportation industries. 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. U.S. Transportation Secretary Ray LaHood stated: ‘‘Keeping Americans safe is without question the Federal government’s highest priority—and that includes safety on the road, as well as on mass transit and rail.’’ In addition, the Secretary pledged to work with Congress to ensure that the issue of distracted driving is appropriately addressed.13 At the conclusion of the Summit, the Secretary announced a series of concrete actions that the Obama Administration and DOT are taking to address distracted driving, including immediately starting rulemakings that would ban texting and restrict, to the extent possible, the use of mobile telephones 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 follow-up to the Summit, and based on data from studies on distracted driving, FMCSA initiated a number of actions to combat distracted driving by CMV drivers. Specifically, FMCSA issued Regulatory Guidance (75 FR 4305, January 27, 2010) that addressed texting by CMV drivers and issued a final rule (75 FR 59118, September 27, 2010) that prohibits texting by CMV drivers. Finally, DOT held a second Distracted Driving Summit on September 21, 2010, Safety Advocacy Organizations Numerous safety advocacy groups voiced support for a prohibition on mobile telephone use while driving. In January 2009, the National Safety Council (NSC) called for a nationwide prohibition on all cell phone use while driving.14 The NSC is focused on 13 U.S. Department of Transportation (October 1, 2009). U.S. Transportation Secretary Ray LaHood Announces Administration-Wide Effort to Combat Distracted Driving (DOT 156–09). Retrieved July 23, 2010, from: http://www.dot.gov/affairs/2009/ dot15609.htm. 14 National Safety Council, (n.d.). Distracted Driving. Retrieved July 21, 2010, from: http:// E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules alerting the American public to the fact that different distractions have different levels of crash risk. Additionally, Advocates for Highway and Auto Safety (Advocates) applauded DOT’s effort to consider banning texting and restricting cell phone use by operators of CMVs. Advocates recently filed a petition for rulemaking requesting consideration of such action on the use of a wide array of electronic devices used by commercial drivers.15 Transportation Industry Associations jlentini on DSKJ8SOYB1PROD with PROPOSALS Trucking Industry The American Trucking Associations, Inc. (ATA) adopted a policy supporting the safe use of technologies and encourages drivers and/or motor carriers to consider a range of policies and safeguards intended to reduce, minimize, and/or eliminate driver distractions that may be caused by the increased use of electronic technologies. ATA’s policy recommends that manufacturers and others adopt awareness, training, and safety policies on the use of such technologies—unless they are already regulated—while operating a motor vehicle. ATA believes that the use of hand-held electronic devices and the act of texting with such devices while a motor vehicle is in motion should be prohibited.16 Another one of the initiatives on ATA’s safety agenda is their policy on the use of nonintegrated technologies while the vehicle is in motion.17 In fact, many ATA member fleets have already adopted company policies designed to reduce distractions while operating CMVs. Many of these fleets do not allow drivers to operate any electronic devices at all, including dispatching equipment, while the vehicle is moving. ATA conducted an opinion survey of its safety committees www.nsc.org/safety_road/Distracted_Driving/Pages/ distracted_driving.aspx. 15 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 July 21, 2010, from the Advocates for Highway and Auto Safety Web site: http://www.saferoads.org/files/file/ Distracted%20Driving%20 Statement%20by%20Judith%20 Stone%20October%201,%202009.pdf. 16 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 July 21, 2010, from: http:// www.truckline.com/Newsroom/Testimony1/ Randy%20Mullett%20—%20Distracted%20 Driving%20testimony.pdf. 17 Boyce, C. (June 9, 2009) ATA Unveils Progressive New Highway Safety Agenda. Retrieved July 21, 2010, from: http://www.truckline.com/ pages/article.aspx?id=541%2F%7b8E1C7279-ED274C03-B189-CEEEE26BBB12%7d VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 on the use of ‘‘non-integrated electronic devices.’’ From the responses of these industry leaders, ATA found that 67 percent of respondents had a policy restricting or limiting the use of portable electronic devices while driving. United Parcel Service, Inc. has an existing policy of no distractions while behind the wheel (e.g., two hands on the wheel and no two-way communication); and FedEx does not allow drivers to use any electronic device while operating FedEx vehicles.18 Additionally, ExxonMobil and Shell are examples of large companies that prohibit employees’ use of any type of cell phone while driving during work hours.19 Because numerous large commercial trucking operations already have policies that prohibit the use of portable electronic devices while driving, a restriction on hand-held mobile telephone use is not expected to have a significant adverse impact on trucking fleets. The Owner-Operators Independent Drivers Association (OOIDA) called upon government entities to aggressively pursue opportunities to educate the motoring public on safe driving practices and encourages law enforcement agencies to fully enforce existing laws pertaining to inattentive or negligent driving.20 The Truckload Carriers Association (TCA) supports the safe use of technologies and encourages drivers and/or motor carriers to consider a range of policies and safeguards intended to reduce, minimize, and/or eliminate driver distractions caused by the increased use of electronic technologies (e.g., global positioning systems, cellular phones, etc.) during the operation of all types of motor vehicles.21 Motorcoach Operators A spokesman for the United Motorcoach Association, which represents tour bus operators, stated that motorcoach operators should not tolerate drivers using mobile telephones unless there is an emergency. The American Bus Association (ABA) supports safety initiatives, and the 18 Halsey, A. (October 2, 2009). Obama to Federal Employees: Don’t Text and Drive. Washingtonpost.com. Retrieved July 21, 2010, from: http://www.washingtonpost.com/wp-dyn/content/ article/2009/10/01/AR2009100103447_pf.html. 19 Insurance Information Institute (December 2009). Cellphones and Driving. Retrieved July 21, 2010, from: http://www.iii.org/IU/Cellphone-anddriving/. 20 OOIDA (n.d.). Distracted Driving. Retrieved from the OOIDA Web site, July 22, 2010, from: http://ooida.com/Issues&Actions/Issues/ DistractedDriving/distracted-driving.htm. 21 Truckload Carriers Association (March 8, 2009). Safe Use of Technology. Retrieved July 21, 2010, from: http://www.truckload.org/Safe-Use-ofTechnology. PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 80019 safety culture of ABA and its member operators support such bans. ABA’s pretrip passenger safety messaging video instructs passengers, not drivers, to dial 911 in case of emergency. Only in extreme emergencies should drivers ever use a cell phone while operating motorcoaches. Furthermore, ABA asserted that hands-free use of cell phones is no better than hand-held cell phone use, as cognitive distraction is the safety issue in question.22 The ABA also drafted a model policy for members that states in part: ‘‘Cell phones and regulated electronic devices (REDs) are not to be used while the vehicle is in motion. Incoming calls or transmissions received on company-provided or authorized cell phones or REDs should go into voicemail and may be checked only when the bus is parked in a safe location.’’23 Numerous large motorcoach and bus operations have already adopted policies that restrict the use of portable electronic devices while driving (many of them are more restrictive than the ABA model policy). School Bus Operations School bus operations are the focus of many States and local governments that have implemented distracted driving policies and laws; currently, 19 States and the District of Columbia 24 ban school bus drivers from using a mobile telephone while driving. Many cities, towns, and counties prohibit mobile telephone use or texting by school bus operators. The American School Bus Council, whose membership includes: National Association for Pupil Transportation, National Association of State Directors of Pupil Transportation Services, National School Transportation Association, Blue Bird Corporation, IC Corporation, and Thomas Built Buses, recommends prohibiting the use of cell phones or other portable electronic devices—even those equipped with hands-free features—while driving and banning the use of cell phones while supervising the loading and unloading of students.25 22 Pantuso, P. (October 6, 2009). Government Seeks Tougher Laws on Distracted Driving. Retrieved July 21, 2010, from the American Bus Association Web site: http://www.buses.org/files/ MemberAlertTextingCellPhones100509[1].pdf. 23 ABA Strategic Safety Committee (2010). Recommended Model Company Policy: Cell Phones and Electronic Devices (REDs). Available in the docket for this rulemaking. 24 Vermette, E. (2010). Curbing Distracted Driving 2010 Survey of State Safety Programs. Retrieved July 21, 2010, from: http://www.distraction.gov/ files/research/GHSA-2010_distraction.pdf. 25 American School Bus Council (February 14, 2007). American School Bus Council Exceeds NTSB’s Recommendation on Cell Phone Use by School Bus Drivers. Retrieved July 23, 2010, from: E:\FR\FM\21DEP1.SGM Continued 21DEP1 80020 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules American Public Transportation Association (APTA) On December 31, 2009, the APTA Bus Safety Working Group published a Recommended Practice regarding employee-controlled distractions while operating a vehicle on agency time. The intent of the voluntary standard is to provide transit agencies with a guideline to develop policies and standard operating procedures regarding operator controlled distractions.26 FMCSA solicits comments about companies’ or organizations’ policies on drivers’ use of mobile telephones and other portable electronic devices while driving CMVs on our Nation’s highways. D. Studies of Mobile Telephone Use While Driving There are a number of studies from both government and private sources jlentini on DSKJ8SOYB1PROD with PROPOSALS http://www.americanschoolbuscouncil.org/ uploads/pdf/Guidelines_Release.pdf. 26 APTA Bus Safety Working Group (December 31, 2009). Reducing Driver-Controlled Distractions While Operating a Vehicle on Agency Time. Retrieved from the American Public Transportation Association Web site, July 23, 2010, from: http:// www.aptastandards.com/Portals/0/Bus_Published/ APTA-BTS-BS-RP-005-09_employee_controlled _distractions.pdf. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 related to distracted driving. However, there are few studies of distracted driving that focus on the CMV driver. The following peer-reviewed studies were considered while developing this NPRM. These studies use different methodologies to analyze driver distraction. There are advantages and disadvantages to each methodology as follows: • Simulator studies, and to some extent test-track studies, allow for experimental control over and measurement of the cognitive distractions, such as the type of phone conversation. These studies may have unrealistic driving and cell phone use conditions because they are not conducted on public roadways and therefore lack many of the risks associated with real world driving; • Naturalistic driving studies use cameras and instrumentation in participants’ vehicles to provide a clear picture of driver distraction under realworld driving conditions. However, these studies may have a small sample size of some of the individual distractions. Overall, it is important to keep these differences in mind while comparing the results from different research PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 methods. Regardless, these studies illustrate degradations in driver performance due to the effects of driver distraction. Driver Distraction in Commercial Vehicle Operations 27 Under contract with FMCSA, the Virginia Tech Transportation Institute (VTTI) completed the study titled, ‘‘Driver Distraction in Commercial Vehicle Operations,’’ and released the final report on October 1, 2009. The purpose of the VTTI Study (2009) was to investigate the prevalence of driver distraction in CMV safety-critical events recorded in a naturalistic data set that included over 200 truck drivers and data from 3 million miles of operations. Of the 4,452 safety-critical events noted in the combined data, 60 percent had some type of non-driving related task listed as a potential contributing factor. Safety-critical events are crashes, nearcrashes, crash-relevant conflicts, and unintentional lane deviations. 27 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: FMCSA, July 2009. Retrieved July 26, 2010, from: http:// www.fmcsa.dot.gov/facts-research/researchtechnology/report/FMCSA-RRR-09-042.pdf. E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 a safety- critical event are six times greater while the driver is dialing a cell phone than when the driver is not dialing a cell phone. But, according to the VTTI study, the odds of being involved in a safety critical event while talking or listening to a hand-held or hands-free phone do not show an increased risk. In addition, the population attributable risk (PAR) incorporates the frequency of engaging in a non-driving related task by the population of drivers. If a task is done more frequently by a large population of drivers, it will have a greater PAR percentage. High PAR percentages occurred for commonly performed tasks (i.e., a task, which if removed, would increase safety most). The PAR percentage for reaching for an object was the highest in the study at 7.6 percent. In other words, there would be 7.6 percent fewer safety- critical events, if reaching for an object while driving PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 never occurred. The risk of being involved in a safety-critical event was greater for other distracting activities, but the prevalence of the distractions was greatest for reaching for an object. In contrast, the PAR for talking on a hand-held phone was relatively low, at 0.2 percent, and the PAR was not calculated for talking on a hands-free cell phone. FMCSA constructed a diagram that shows the relationship between the odds ratios of various activities conducted while driving and their associated eyes-off-roadway times. As seen in Diagram 1 (constructed from data in the VTTI study), those tasks that drew the driver’s eyes away from the forward road led to a significant increase in risk. For example, texting, dialing, using other electronic devices, reading a map or grooming stand out as risky tasks. E:\FR\FM\21DEP1.SGM 21DEP1 EP21DE10.067</GPH> jlentini on DSKJ8SOYB1PROD with PROPOSALS The VTTI Study (2009) separately examined the different sub-tasks associated with cell phone use. Although talking on the cell phone did not show an increased risk, as seen in Table 1, a driver must take several riskincreasing steps in order to use the electronic device for conversation. In particular, as also shown in Table 1, the use of a cell phone involves a variety of sub-tasks, including reaching for and holding the phone, performing the visually complex process of manually dialing the phone, and then carrying out the conversation. In FMCSA’s view, the risk associated with cell phone use should be viewed as a series of related sub-tasks, not all having equal risk. The odds of being involved in a safetycritical event are three times greater while the driver is reaching for an object than when the driver is not reaching for an object. The odds of being involved in 80021 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS During the 3.8 seconds the driver has his eyes off the forward roadway while dialing his mobile telephone, at 55 miles per hour, the CMV travels about the length of a football field, 306 feet. A complete copy of the final report for the VTTI Study (2009) is included in the docket referenced in the beginning of this rulemaking notice. Distraction in Commercial Trucks and Buses: Assessing Prevalence and Risk in Conjunction With Crashes and NearCrashes28 The purpose of this research was to conduct an analysis of naturalistic data collected by DriveCam®. The 28 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. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 introduction of naturalistic driving studies that record drivers (through video and kinematic 29 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; they only included 29 Kinematics is a branch of physics that deals with the motion of a body or system without reference to force and mass. PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 recorded events that met or exceeded a kinematic threshold (a minimum g-force setting that triggers the event recorder). These recorded events included safetycritical 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 crashrelevant conflicts, and 211,171 baselines were captured in the data set. Odds ratios were calculated to show a measure of association between involvement in a safety-critical event, which includes crashes, and performing a non-driving related task. The odds ratios show the odds of being involved in a safety critical event when a nondriving related task is present compared E:\FR\FM\21DEP1.SGM 21DEP1 EP21DE10.068</GPH> 80022 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS to when there is no non-driving related task. The non-driving related task, ‘‘any cell phone usage,’’ includes all the specific cell phone sub-tasks, such as reaching for, dialing, talking or listening to a hand-held or hands-free cell phone. Drivers increased their odds of involvement in a safety-critical event by 1.14 times for ‘‘any cell phone usage’’ while driving. However, when the cell phone task was disaggregated into subtasks, the study results show that the sub-tasks involved with using a cell phone have different risks, some increasing and some decreasing the odds of involvement in a safety-critical event. The odds of involvement in a safety critical event increased significantly when truck and bus drivers performed certain non-driving related tasks: • Reaching for a cell phone while driving increased the odds by 3.7 times; • Dialing a cell phone while driving increased the odds by 3.5 times; • Reaching for a headset/earpiece increased the odds by 3.4 times. Drivers decreased the odds of being involved in a safety-critical event by .65 times while talking or listening on a hands-free cell phone. However, the odds ratio for talking/listening should not ignore the fact that a person usually has to reach for and dial a cell phone in order to talk or listen. Both consuming food/drink and talking/ listening on a hand-held cell phone (odds ratios = 1.11 and 0.89, respectively) had non-significant odds ratios (i.e., no increase or decrease in risk). The Impact of Cognitive Distraction on Driver Visual Behavior and Vehicle Control While conclusive evidence is still lacking, several studies focused on cognitive distraction and its influence on driver performance. Harbluk, Noy, and Eizenman (2002) examined the impact of cognitive distraction on drivers’ visual behavior and vehicle control.30 This instrumented-vehicle study examined changes in drivers’ visual scanning driving patterns under three tasks varying in cognitive complexity: no distraction, an easy cognitive task (i.e., simple addition), and a difficult cognitive task (i.e., difficult addition). As predicted, drivers had significantly increased hard-braking events under distracted driving conditions. Interestingly, under 30 Harbluk, J. L., Noy, Y. I., & Eizenman, M. (2002). The Impact of Cognitive Distraction on Driver Visual Behavior and Vehicle Control (Report No. TP 13889E). Ottawa: Transport Canada. Retrieved July 26, 2010, from: http://people.usd.edu /∼schieber/materials/trans-canada-13889.pdf. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 distracted driving conditions, drivers made fewer eye movements, spent more time focusing on the central visual field, and spent less time scanning the right periphery. This suggests that visual scanning collapses to a minimal level under distracted driving conditions, increasing the risk that a driver will miss a critical event. A Decrease in Brain Activation Associated With Driving When Listening to Someone Speak Just, Keller, and Cynkar (2008) used functional magnetic resonance imaging (MRI) to investigate the impact of concurrent auditory language comprehension on the brain activity associated with a simulated driving task.31 Participants steered a vehicle along a curving virtual road, either undisturbed or while listening to spoken sentences that they judged as true or false. The study was designed to assess the neural effect of listening while driving, similar to listening to a cell phone while driving. The central findings were that the sentence listening task reliably degraded driving performance. The behavioral measures indicated reliably more roadmaintenance errors and larger deviation from an ideal path in the driving with listening condition. The findings show that language comprehension performed concurrently with driving draws mental resources away from the driving and produces deterioration in driving performance, even when it is not accompanied by holding or dialing a phone. The Distraction Effects of Phone Use During a Crucial Driving Maneuver A study by Hancock, Lesch, and Simmons (2003) 32 examined the effect of drivers on a test track responding to an in-vehicle phone at the same time they were faced with making a crucial stopping decision. The most crucial finding was the variation in stopping accuracy in the presence of the phone distraction task, from 95 percent accuracy without distraction to 80 31 Just, M.A., Keller, T.A., & Cynkar, J. (2008). A Decrease in Brain Activation Associated With Driving When Listening to Someone Speak. Brain Research. Retrieved July 26, 2010, from: http:// www.distraction.gov/files/research/carnegiemellon.pdf. 32 Hancock, P. A., Lesch, M., & Simmons, L. (2003). The Distraction Effects of Phone Use During a Crucial Driving Maneuver. Accident Analysis and Prevention, 35(4), 501–514. Retrieved July 26, 2010, from: http://www.sciencedirect.com/science?_ob= MImg&_imagekey=B6V5S–45SH77V-1-20&_ cdi=5794&_user=3928936&_pii= S0001457502000283&_orig=search&_coverDate= 07%2F31%2F2003&_sk=999649995&view=c& wchp=dGLzVtb-zSkWb&md5=b40e15505 a9c7b04bd3c6aa3c42a5777&ie=/sdarticle.pdf. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 80023 percent with distraction, a significant 15 percentage point reduction. The study shows there is a detrimental impact of a coincident in-vehicle phone task on a critical driving maneuver. Passenger and Cell Phone Conversations in Simulated Driving Drews, Pasupathi, and Strayer (2008) examined in a simulator study how conversing with passengers in a vehicle differs from conversing on a cell phone while driving.33 The results show that the number of driving errors was highest when the driver was conversing on a cell phone while driving. Passenger conversations made more references to traffic. In addition, drivers’ speech production rate (measured in syllables per second) and the drivers’ and passengers’ speech complexity rate (measured in syllables per word of speech) dropped in response to an increase in the demand of the traffic. Overall, the study found that cell phone use negatively impacts lane keeping, increases the following distance, and leads to impairment of a navigation task, while passenger conversations have little effect on all of the three measures. Request for Additional Research or Data Overall, these studies illustrate degradations in driver performance due to the effects of driver distraction. The studies do not necessarily break down the individual components of mobile telephone use like the VTTI study does. However, they suggest certain risks when using a mobile telephone. Commenters are encouraged to provide other research or data that would enable the Agency to better assess the risk associated with mobile telephone use by CMV drivers while operating their vehicles. E. Existing Mobile Telephone Bans by Federal, State, and Local Governments Federal 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 27, 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 mobile telephones and texting by railroad operating employees. FRA cited numerous examples of the adverse impact that electronic devices can have 33 Drews, F.A., Pasupathi, M., & Strayer, D.L. (2008). Passenger and Cell Phone Conversations in Simulated Driving. Journal of Experimental Psychology: Applied, 14(4). Retrieved July 26, 2010, from: http://www.psych.utah.edu/lab/ appliedcognition/publications/passenger.pdf. E:\FR\FM\21DEP1.SGM 21DEP1 80024 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS on safe operations. These examples included fatal crashes that involved operators who were distracted while texting or talking on a mobile telephone. In light of these incidents, FRA proposed to amend its railroad communications regulations by restricting use of mobile telephones and other distracting electronic devices by railroad operating employees. FRA published its final rule in the Federal Register on September 27, 2010 (75 FR 59580). On September 27, 2010, FMCSA also published a final rule (75 FR 59118) that prohibits texting on electronic devices, including mobile telephones, while driving a CMV. This rulemaking action addressed one of the riskiest distracted driving behaviors. Furthermore, on September 27, 2010, the Pipeline and Hazardous Materials Safety Administration published a notice of proposed rulemaking (75 FR 59197) that addressed distracted activities by drivers under its authority. States Nine States and the District of Columbia have traffic laws prohibiting all motor vehicle drivers from using a hand-held mobile telephone while driving. School bus drivers are currently prohibited from any mobile telephone use in 19 States and the District of Columbia. A list of these States can be found at the following Web site: http:// www.iihs.org/laws/cellphonelaws.aspx. Generally, the State traffic laws are applicable to all drivers operating motor vehicles within those jurisdictions, including CMV operators. Some States are already tracking enforcement. For example, since March of 2008, when New Jersey’s wireless hand-held telephone and electronic communication device ban became effective, more than 224,000 citations— an average of almost 10,000 a month— were issued to motorists violating this cell phone law. Additionally, as part of its continuing effort to combat distracted driving, DOT kicked off pilot programs in Hartford, Connecticut, and Syracuse, New York, to test whether increased law enforcement efforts can get distracted drivers to put down their mobile telephones and focus on the road. During 1 week of the pilot program in Hartford, police cited more than 2,000 drivers for talking on mobile telephones and 200 more for texting while driving. Public Transportation Agencies The severity of the problem of distracted driving led public transportation agencies to ban the use of VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 mobile telephones/electronic devices while an operator is driving a vehicle in passenger service. In the period from May 2008 to May 2009, after the Massachusetts Bay Transportation Authority (MBTA) issued its cell phone ban, 12 bus drivers employed by the MBTA were suspended and one bus driver was fired for using a cell phone while on duty. Most transit agencies allow operators to carry cell phones or other electronic devices in backpacks, purses, or bags, and to use them outside the vehicle during breaks and layovers and during emergencies. However, many large transit agencies prohibit operators from carrying cell phones or other electronic devices in the cab. Examples of policies at public transportation agencies include the following: • MBTA. The MBTA banned cell phone use by drivers while on the job, with penalties escalating from a 3-day suspension after one offense, to a 10-day suspension after two, and dismissal for the third offense. Engineers on commuter-rail trains operated by a private contractor are also prohibited from having a cell phone or other device on their person.34 • Chicago Transit Authority (CTA). The CTA’s zero tolerance policy prohibits employee use of electronic devices while operating buses and trains. This policy prohibits the use of cell phones, smart phones, personal digital assistants (PDAs), MP3/music players, wireless headsets, or any other appliance or device. Having possession of an electronic device results in probation and a 3-day suspension. Use of the device while on duty may lead to discharge.35 • Greater Cleveland Regional Transit Authority (GCRTA). All employees are prohibited from having a cell phone on their person while operating a bus or train at the GCRTA. The prohibition includes: Cell phones; smart phones; PDAs, electronic music devices; wireless headsets; or any other electronic communication or listening devices. While on duty, operators must keep cell phones and other devices separate from their person. They may be stored on-board in personal bags or purses. Cell phones may only be used when the operator is on layover, the vehicle is stopped, the parking brake is set, and he/she has left the driver’s seat. Employees will be terminated for a first offense.36 34 Massachusetts Bay Transportation Authority (June 7, 2009). Cell Phone Ban Expanded. Retrieved July 26, 2010, from the MBTA Web site: http:// www.mbta.com/about_the_mbta/news_events/ ?id=17461&month=&year=. 35 Chicago Transit Authority (August 5, 2009). CTA Adopts Zero Tolerance Policy on Employee Use of Electronic Devices While On-Duty. Retrieved July 26, 2010, from the CTA Web site: http:// www.transitchicago.com/news/default.aspx? Archive=y&ArticleId=2427. 36 Greater Cleveland Regional Transit Authority (September 18, 2009) RTA Strengthens Cell Phone Policy. Retrieved July 26, 2010, from the GCRTA Web site: http://www.riderta.com/nu_newsroom_ releases.asp?listingid=1345. PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 While FMCSA is aware that many organizations have policies on mobile telephone use, FMCSA solicits further comments on mobile telephone use policy and enforcement and on the applicability of State laws and local ordinances to school bus drivers and transit employees. IV. Discussion of Proposed Rule Federal Restriction of Mobile Telephone Use by Interstate CMV Drivers In light of the available studies, and to partially address the NTSB and MCSAC recommendations, the Agency proposes a restriction on the use of hand-held mobile telephones by CMV drivers operating in interstate commerce. This rulemaking would prohibit a CMV driver from reaching for, holding, and dialing a mobile telephone in order to conduct a voice communication while driving. Essentially, the CMV driver must be ready to conduct a voice communication in compliance with the proposed rule the moment he begins driving the vehicle. The proposed rule would include definitions related to the restriction. It also would add a driver disqualification provision for interstate CMV drivers. A driver disqualification provision would also be included for CDL holders convicted of two or more violations of State or local traffic laws or ordinances on motor vehicle traffic control concerning hand-held mobile telephone use. This NPRM would amend regulations in 49 CFR parts 383 and 384 concerning the Agency’s CDL regulations, part 390 concerning general applicability of the FMCSRs, part 391 concerning driver qualifications and disqualifications, and part 392 concerning driving rules. In general, the proposed requirements are intended to reduce the risks of distracted driving by restricting handheld mobile telephone use by a driver who is operating a CMV in interstate commerce. For CMV drivers operating in interstate commerce, the proposed rule would: (1) Restrict the use of hand-held mobile telephones; and (2) provide sanctions for those drivers convicted of using a hand-held mobile telephone while operating a CMV in interstate commerce, including civil penalties and/or disqualification from driving a CMV for a specified period of time. In addition, the proposed rule would provide sanctions for CDL holders convicted of violating a State or local law or ordinance on motor vehicle traffic control restricting the use of a hand-held mobile telephone while operating any CMV— specifically, a E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS disqualification for a specified period of time from operating any CMV requiring a CDL. The proposed rule would also require interstate motor carriers to ensure compliance by their drivers with the restrictions on use of a hand-held mobile telephone while driving a CMV. Motor carriers would be prohibited from requiring or allowing drivers of CMVs to use a hand-held mobile telephone while operating in interstate commerce. As indicated above, FMCSA proposes that any CDL holder operating a CMV (as defined in § 383.5) who is convicted of violating a State or local traffic law or ordinance on motor vehicle traffic control restricting or prohibiting handheld mobile telephone use while driving a CMV would be disqualified for 60 days after a second conviction and 120 days after a third or subsequent conviction within a 3-year period.37 State or local laws or ordinances restricting or prohibiting hand-held mobile telephone use would be added to the list of ‘‘serious’’ traffic offenses under § 383.51(c). The disqualifying serious traffic offense would be applicable to all persons who are required to possess a CDL, in accordance with the requirements of 49 CFR part 383, and who are subject to a State or local law or ordinance restricting or prohibiting hand-held mobile telephone use while driving. Therefore, the amendment to the CDL rules would be applicable to CMV drivers employed by Federal, State, or local government agencies, transit authorities, and school districts. Other Technologies It is not FMCSA’s intention to limit current or future innovative technologies that could allow safe and effective, completely hands-free, voice communication. Because of the lack of information about the availability of completely hands-free technology for CMV drivers’ work environment, FMCSA is unable to analyze their safety and economic or environmental impacts. The Agency is proposing to allow hands-free mobile telephone use as long as it does not require the driver to reach for, dial, or hold a mobile telephone, taking the driver’s eyes off the forward roadway and a hand off the wheel. We request comments on this rationale as well as whether true handsfree mobile telephones exist for use in the CMV operating environment, whether they are safe to use while driving a CMV, or whether they should 37 Although the statute (in 49 U.S.C. 31310(e)) authorizes disqualifications of ‘‘at least’’ 60 or 120 days, the proposed rule follows the existing structure in the FMCSRs and provides for disqualifications of exactly 60 or 120 days. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 be banned as well. The Agency is also interested in receiving public comments and acquiring further knowledge about innovative technologies, either those that exist today or that are under development, including the practicability of their application and use in CMVs and their safety and economic or environmental impact. FMCSA notes that the use of Citizens Band (CB) radios is not restricted in this proposed rule. CB radios are not included in this proposed rule because they do not fall under the definition of ‘‘commercial mobile radio services’’ as defined by the FCC. The NPRM should not be construed as a proposal to restrict the use of mobile telephones by drivers when they are not driving. With significant national awareness now focused on the issue of distracted driving, the Agency hopes that important safety gains can be achieved as a result of this increased attention on the use of mobile telephones by drivers operating CMVs. Although fleet management systems and electronic dispatching tools are used by many of the Nation’s largest CMV fleets, the Agency believes safety-conscious fleet managers would neither allow nor require their drivers operating CMVs to use these devices or hand-held mobile telephones while driving. Applicability to Federal, State, or Local Government Employees FMCSA’s proposed explicit restriction on using a hand-held mobile telephone while driving a CMV would apply to CMV drivers covered under 49 CFR Part 392, but the requirements of Part 392 would not be applicable to Federal, State, or local government-employed drivers of CMVs in interstate commerce. Those drivers are statutorily exempt from nearly all of FMCSA’s safety regulations. However, the Agency proposes to make amendments to its disqualifying offenses for such CDL drivers if they are convicted, while driving a CMV, of violating a State or local law or ordinance on motor vehicle traffic control that restricts or prohibits the use of hand-held mobile telephones while driving. The Agency’s amendments to the CDL regulations would be applicable to Federal, State, or local government-employed drivers of CMVs who are required to possess a CDL. The proposed rule would also be applicable to transit employees employed by Federal, State, and local governments who are required to possess a CDL. PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 80025 Section-by-Section Analysis Section 390.3 38 The Agency proposes to modify several discretionary regulatory exemptions concerning the applicability of the existing FMCSRs, including one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver), not for direct compensation (49 CFR 390.3(f)(1) and (6)). The Agency finds that this action is necessary for public safety regarding school bus transportation by interstate motor carriers, a finding required by the applicable statutory provisions, as explained above in the legal authority section. In addition, the Agency determined that in order to enhance public safety to the greatest extent possible, the rule should apply to the operation by drivers of small-passenger carrying vehicles (designed to transport 9–15 passengers) who are not receiving direct compensation, which are otherwise exempt from most of the FMCSRs under 49 CFR 390.3(f)(6). Section 390.5 The Agency proposes to amend 49 CFR 390.5 by adding new definitions for the terms ‘‘mobile telephone’’ and ‘‘using a hand-held mobile telephone,’’ for general application. A broad definition of the term mobile telephone is proposed because of the wide variety of radio telephone services, in addition to cell phone services, that are licensed by the Federal Communications Commission (FCC) and might be available for use in a CMV. ‘‘Mobile telephone’’ could include, for example, a satellite telephone service, a broadband radio service, or a personal communications system. Using such wireless communication services is just as distracting to a CMV driver as using a cell phone. The FCC classifies these services as ‘‘commercial mobile radio services,’’ which are incorporated into the definition of mobile telephone. It does not include two-way or Citizens Band radio. In this rulemaking, FMCSA proposes to define ‘‘using a hand-held mobile telephone’’ to clarify that certain uses of a hand-held mobile telephone are restricted, including reaching for, 38 The proposed rules in this NPRM are numbered and placed in relation to the rules currently in effect and published in the Code of Federal Regulations (CFR). The Agency has issued an NPRM addressing texting while driving a CMV, which proposes similar definitions, and analogous prohibitions and disqualifications (75 FR 16391, April 1, 2010). The numbering and placement of any final regulations that result from this rulemaking will be adjusted appropriately to reflect any final rules adopted in other rulemakings. E:\FR\FM\21DEP1.SGM 21DEP1 80026 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules dialing, and holding the mobile telephone to conduct voice communication. The Agency recognizes that mobile telephones often have multifunctional capability and is not prohibiting the use of mobile telephones for other uses. Of course, other types of activities using a mobile telephone might be covered by other rules proposed by FMCSA, such as those addressing texting while driving a CMV. To be consistent with these new definitions, FMCSA proposes removing exception (2)(i) from the existing definition of ‘‘texting’’ in this section. Section 391.2 FMCSA proposes to amend 49 CFR 391.2, which provides certain exceptions to the requirements of part 391 for custom farm operations, apiarian industries, and specific farm vehicle drivers, to enable the Agency to make violations of the Federal mobile telephone restriction a disqualifying offense for such drivers. While the proposed explicit Federal restriction against hand-held mobile telephone use applies directly to these drivers, the disqualification provision in proposed § 391.15(f) below would not apply without this amendment to the current exceptions under 49 CFR 391.2. jlentini on DSKJ8SOYB1PROD with PROPOSALS Section 391.15 FMCSA proposes to add a new paragraph (f) to 49 CFR 391.15 entitled ‘‘Disqualification for violation of restriction on using a hand-held mobile telephone while driving a commercial motor vehicle.’’ 39 This provision would provide for the disqualification from operating a CMV in interstate commerce of any driver convicted of two or more violations within a 3-year period of the new hand-held mobile telephone use restriction while operating a CMV as set forth in proposed § 392.82. For the driver’s first hand-held mobile telephone use conviction, the Agency could assess a civil penalty against the driver. If a driver is convicted of committing a second hand-held mobile telephone use violation within 3 years, he or she would be disqualified for 60 days, in addition to being subject to the applicable civil penalty. For three or more hand-held mobile telephone use convictions for violations committed within 3 years, a driver would be disqualified for 120 days, in addition to being subject to the applicable civil penalty. This proposed change to the disqualifying offenses for interstate 39 The texting NPRM, cited above, proposed to add a new paragraph (e) to this section. Therefore, paragraph (e); is reserved in this NPRM for possible use by this Agency for another rulemaking. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 drivers would mirror the Agency’s corresponding proposed new provisions governing the disqualification offenses for CDL drivers in § 383.51(c). The required number of convictions to cause a disqualification by FMCSA and the period of disqualification would be the same: 60 days for the second offense within 3 years and 120 days for three or more offenses within 3 years. In addition, the first and each subsequent violation of such a restriction or prohibition by a driver would be subject to civil penalties imposed on such drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, A(4)). Section 392.82 In this section, the Agency proposes a new restriction on using a hand-held mobile telephone while driving a CMV. Furthermore, this proposed section states that motor carriers must not allow or require CMV drivers to use a handheld mobile telephone while driving. The Agency would also include a provision in this proposed section to apply this new hand-held mobile telephone restriction to ‘‘school bus operations notwithstanding the general exception in 49 CFR 390.3(f)(1).’’ Thus, school bus drivers who are employed by non-government entities and who transport school children and/or school personnel between home and school in interstate commerce would be subject to this proposed section. The Agency determined that this proposed section is necessary for public safety regarding school bus transportation by interstate motor carriers. In addition, the proposed rule would apply to the operation of CMVs designed or used to transport between 9 and 15 passengers (including the driver), not for direct compensation, notwithstanding the exception in 49 CFR 390.3(f)(6). The proposed section would also require employers to ensure compliance by their drivers with the restrictions on use of a hand-held mobile telephone while driving a CMV. Any violation by an employer would 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 part 386 Appendix B, paragraph (a)(3)). A definition of ‘‘driving a commercial motor vehicle’’ would be incorporated into the restriction on using a hand-held mobile telephone while driving, in the proposed new § 392.82, in order to confine the use of that term to the restriction and the related disqualification and to avoid limiting the scope of the same term as used in other provisions of the FMCSRs. The Agency proposes to add a limited exception to the hand-held mobile PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 telephone restriction to allow CMV drivers to use their hand-held mobile telephones if necessary to communicate with law enforcement officials or other emergency services. Federal Disqualification Standard for CDL Drivers Any CDL driver operating a CMV (as defined in § 383.5) who is convicted of violating a State or local motor vehicle law or ordinance that prohibits or restricts the use of a hand-held mobile telephone while driving a CMV would be disqualified after his or her second conviction for the hand-held mobile telephone offense or any other serious traffic violation (as defined by § 383.51(c)). The CDL disqualifying offense would be applicable to all persons who are required to possess a CDL, in accordance with the requirements of 49 CFR part 383, and who are subject to a State or local law or ordinance prohibiting or restricting the use of a hand-held mobile telephone while driving, when the offense occurs during the operation of a CMV. Therefore, the amendment to the CDL rules is applicable to drivers employed by Federal, State, or local government agencies, transit authorities, and school districts. To assist in the application of the provisions for disqualification, the regulations include definitions of the words ‘‘mobile telephone’’ and ‘‘using a hand-held mobile telephone.’’ Section 383.5 The Agency proposes to add new definitions for the terms ‘‘mobile telephone’’ and ‘‘using a hand-held mobile telephone.’’ The Agency proposes a broad definition of mobile telephones based on the FCC regulations to cover the multitude of devices that allow users to send or receive voice communication while driving. The definitions of ‘‘mobile telephone’’ and ‘‘using a hand-held mobile telephone’’ would identify the type of activity that would be restricted by this proposed rule. To be consistent with these new definitions, FMCSA proposes removing exception (2)(i) from the definition of ‘‘texting’’ in this section. Section 383.51 In Table 2 of 49 CFR 383.51(c), FMCSA would add a new serious traffic violation that would result in a CDL driver being disqualified. This serious traffic violation would be a conviction for violating a State or local law or ordinance restricting hand-held mobile telephone use while driving a CMV. For the purpose of this disqualification, the Agency proposes to use the same description of ‘‘driving’’ that is already E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules in the table for the texting disqualification (§ 383.51(c)(9)). FMCSA notes that the conviction must involve ‘‘using a hand-held mobile telephone’’ while operating a CMV and excludes convictions for hand-held mobile telephone use by a CDL driver while operating a vehicle for which such a CDL is not required. The Agency’s decision is consistent with the provisions of 49 U.S.C. 31310(e), which indicates the serious traffic violation must occur while the driver is operating a CMV that requires a CDL; the operative provisions in the revised table would limit the types of violations that could result in a disqualification accordingly. As proposed, every State that issues CDLs would be required to impose this disqualification on a driver required to have a CDL issued by that State whenever that CDL driver was convicted of the necessary number of violations while operating in States where such conduct is restricted or prohibited by a State or local traffic law. Section 384.301 A new paragraph (f) is proposed to be added to § 384.301. It would require all States that issue CDLs to implement the new provisions proposed in part 383 that relate to disqualifying CDL drivers for violating the new serious traffic violation of using a hand-held mobile telephone while driving a CMV as soon as practical, but not later than 3 years after this proposed rule is implemented. Impact on States jlentini on DSKJ8SOYB1PROD with PROPOSALS Motor Carrier Safety Assistance Program (MCSAP) Under MCSAP, States that receive grant funds would be required, as a condition of receiving the grants, to adopt regulations on the hand-held mobile telephone restriction that are compatible with final Federal regulations issued as a result of this rulemaking (49 U.S.C. 31102(a) and 49 CFR 350.201(a)). If a restriction of handheld mobile telephone use (such as proposed in § 392.82) and the related disqualification (such as proposed in § 391.15(f)) are adopted by FMCSA, States under MCSAP would need to adopt compatible regulations applicable to both interstate and intrastate transportation as soon as practicable, but not later than 3 years thereafter (49 CFR 350.331(d)). If States do not adopt compatible regulations restricting handheld mobile telephone use while driving a CMV and related disqualifications, they may not receive full MCSAP grant funding. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 CDL Program States that issue CDLs to CMV drivers would be required to adopt and implement the proposed CDL disqualification provisions that require disqualification for two or more convictions of violating a State or local law or ordinance restricting or prohibiting hand-held mobile telephone use while driving a CMV. States should be in compliance with this hand-held mobile telephone disqualification as soon as practicable, but not later than 3 years after the Agency adopts the disqualification provisions. If they do not comply with this provision, 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). Impact on Other State Laws— Preemption At present, only nine States and the District of Columbia restrict or prohibit hand-held mobile telephone use while driving a motor vehicle within their jurisdictions. FMCSA believes that there is a need for a Federal regulation to address the safety risks associated with hand-held mobile telephone use by CMV drivers nation-wide. The Federal restriction would provide uniform language applicable to CMV drivers engaged in interstate commerce, regardless of the presence or absence of a State law or regulation. State laws and regulations that are compatible with the Federal requirements we are proposing today, or that have a safety benefit or do not create an undue burden upon interstate commerce in conformity with 49 U.S.C. 31141 and 49 CFR 350.333, would remain in effect and could continue to be enforced with regard to CMV drivers. Future actions by the States to institute new restrictions or prohibitions on any form of mobile telephone use while driving CMVs in interstate commerce would be governed by the same principles. For more information see the Federalism section later in this document. The States receiving MCSAP grants would be required, as a condition of receiving the grants, to adopt, at a minimum, regulations compatible with any adopted Federal restriction on use of a hand-held mobile telephone while driving CMVs in interstate commerce, in accordance with the requirements of 49 CFR 350.333. Questions and Request for Comments In order to make an informed decision on all of these issues related to mobile PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 80027 telephone use, the Agency requests review and comment on some specific questions: 1. Should the Agency completely restrict all mobile telephone use, both hand-held and hands-free, by CMV drivers while driving in interstate commerce? 2. Should some CMV drivers, for example, drivers of passenger-carrying vehicles or of vehicles carrying hazardous materials, be more restricted than other CMV drivers? 3. Some motor vehicle design guidelines suggest limiting the time that a visual or a visual-manual task takes the driver’s eyes off of the forward roadway when designing vehicle controls. Should the Agency define a time limit for CMV drivers’ interaction with mobile telephones (either handheld, hands-free, or both)? 4. Should the Agency propose limiting the number of keystrokes or button pushes that a CMV driver is allowed within a certain time frame when using a mobile telephone (either hand-held, hands-free, or both)? Should dialing be defined as a specific number of keystrokes or button pushes such as at least seven keystrokes or button pushes? 5. Are there technologies available or soon to be available that would allow completely hands-free mobile telephone operation by CMV drivers? Please provide any information on the availability and costs of such technologies. The Agency also requests comments regarding the amount of time and steps that are required by the driver to initiate and then conduct a hands-free mobile telephone conversation with such devices. 6. The Agency has proposed a definition for ‘‘use of a hand-held mobile telephone’’ in the regulatory text. The Agency requests comments on this definition as well as the public’s views on whether to include a description of allowable alternatives to ‘‘use of a handheld mobile telephone,’’ such as handsfree technologies. 7. FMCSA seeks comment on its assumptions on States’ costs, any increase in enforcement costs to the States, or any other costs or increases borne by the States. V. Regulatory Analyses FMCSA proposes to restrict the use of hand-held mobile telephones by drivers of CMVs while operating in interstate commerce.40 The Agency proposes new 40 In popular usage, mobile telephones are often referred to as ‘‘cell phones.’’ As explained in the NPRM, however, a variety of different technologies E:\FR\FM\21DEP1.SGM Continued 21DEP1 80028 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules driver disqualification sanctions for interstate drivers of CMVs who fail to comply with this Federal restriction and new driver disqualification sanctions for CDL holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of hand-held mobile telephones. Additionally, motor carriers operating CMVs would be prohibited from requiring or allowing drivers of CMVs to engage in the use of a hand-held mobile telephone while operating in interstate commerce. This rulemaking would improve health and safety on the Nation’s highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving drivers of CMVs. In addition, the proposed rulemaking would reduce the financial and environmental burden associated with these crashes and promote the efficient movement of traffic and commerce on the Nation’s highways. Distraction-related crashes impose a substantial cost on society. Two studies estimate that mobile telephone related crashes are responsible for $43 billion in costs each year in the United States.41 Other studies, including two commissioned by the FMCSA, show that research findings are inconsistent regarding the risks associated with talking. But reaching for and dialing the device while driving is a risky activity.42 In the regulatory evaluation (in the docket for this proposed rule), FMCSA estimates the benefits and costs of implementing a restriction on the use of hand-held mobile telephones while driving a CMV. The Agency considered four regulatory options: (1) No action, (2) a restriction on the use of all mobile telephones while operating a CMV for all interstate CMV drivers, (3) a restriction on the use of all mobile telephones while operating a passengercarrying CMV for all interstate drivers, and (4) a restriction on the use of handheld mobile telephones by all interstate CMV drivers, which is the preferred option in this proposed rule. The first option serves as a baseline for this analysis. For the second option, the Agency conducted a cost-benefit analysis and estimates that this option would potentially lead to an annual net benefit of $4 million (Table 2(b)). Because specific data that would allow the Agency to quantify benefits are unavailable, for the third and fourth options the Agency conducted threshold analyses. Analysis predicts that the third option would lead to an estimated annual cost of approximately $6.4 million. Current guidance from DOT’s Office of the Secretary places the value of a statistical life at $6.0 million (Table 2(c)). Consequently, this option would have to eliminate any combination of crash types equivalent in cost to approximately one fatality in order for the benefits of this proposed rule to equal the costs. The analysis further predicts that the preferred fourth option would lead to an estimated 1-year cost of $12.1 million (Table 2(a)). Consequently, this option would have to eliminate any combination of crash types equivalent to two fatalities per year in order for the benefits of this proposed rule to equal the costs. These results are summarized below in Table 2. TABLE 2(A)—THRESHOLD ANALYSIS RESULTS—OPTION FOUR (PREFERRED OPTION) Total estimated annual costs * Option Four—Restriction on Use of Hand-Held Mobile Telephones—All CMV Drivers. $12.1 Million *** ........... Annual break-even number of fatalities prevented ** Approximately 2 Fatalities. TABLE 2(B)—COST-BENEFIT ANALYSIS RESULTS—OPTION TWO (RESTRICTION ON USE OF ALL MOBILE TELEPHONES—ALL CMV DRIVERS) Estimated annual benefit Estimated annual cost Estimated annual net benefit $84 Million ......................................................... $80 Million ........................................................ $4 Million. TABLE 2(C)—THRESHOLD ANALYSIS RESULTS—OPTION THREE Total estimated annual costs * Option Three—Restriction on Use of All Mobile Telephones—All Passenger-Carrying CMV Drivers. $6.4 Million ................. Annual break-even number of fatalities prevented ** Approximately 1 Fatality. * This cost estimate does not include a one-time cost to the States of $2.2 million. ** A statistical life is valued at $6 million. *** This is a worst case annual cost as it would apply only if 100% of CMV drivers were theoretically replaced every year. jlentini on DSKJ8SOYB1PROD with PROPOSALS Because FMCSA is addressing two of the risky activities cited in the VTTI study, the Agency expects the proposed rule would prevent more than two fatalities and that the benefits justify the cost. The regulatory evaluation also finds the potential costs to the States and private entities do not require further are licensed by the Federal Communications Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; thus, these proposed rules would apply to the range of technologies used to provide wireless telephone communications. But some of the materials and research studies discussed in this evaluation use the popular term ‘‘cell phone,’’ and the discussion continues that usage in such cases. 41 Cohen, J.T. and Graham, J.D., A revised economic analysis of restrictions on the use of cell phones while driving, Risk Analysis 23(1) 1–14, 2003. 42 Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. (2009) Driver distraction in commercial vehicle operations. (Document No. FMCSA–RRR–09–042) Washington, DC: Federal Motor Carrier Safety Administration, July 2009. Retrieved October 20, 2009, from http:// www.fmcsa.dot.gov/facts-research/art-publicreports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010). Distraction in Commercial Trucks and Buses: Assessing Prevalence and Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: Federal Motor Carrier Safety Administration. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules analysis pursuant to the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) because they are less than $140.8 million per year. I also certify, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the proposed rule will not have a significant economic impact on a substantial number of small entities because the average cost to carriers subject to the preferred option would be approximately $24.50. jlentini on DSKJ8SOYB1PROD with PROPOSALS Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FMCSA has determined that this rulemaking action is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, and that it is significant under DOT regulatory policies and procedures because of the substantial Congressional and public interest concerning the crash risks associated with distracted driving. However, the estimated economic costs of the preferred option of the proposed 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. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Carriers are not required to report revenue to the Agency, but are required to provide the Agency with the number of power units (PU) they operate, when they register with the Agency, and to update this figure biennially. Because FMCSA does not have direct revenue figures, PUs serve as a proxy to determine the carrier size that would qualify as a small business given the SBA’s revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a PU. With regard to truck PUs, the Agency determined in the 2003 Hours of Service Rulemaking RIA 43 that a PU produces 43 FMCSA Regulatory Analysis, ‘‘Hours of Service of Drivers; Driver Rest and Sleep for Safe VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 80029 annual cost per carrier for each industry segment. First, FMCSA allocated the total cost 49 of the proposed rule in the first year among property and passenger carriers according to their respective shares of total carrier population.50 Interstate property carriers constitute 98 percent of the total of interstate carriers, whereas interstate passenger carriers constitute 2 percent. The total annual cost of the proposed rule’s preferred option ($12,095,948) 51 was thus weighted by 98 percent for property carriers leading to a total cost of $11,854,036, and by 2 percent for passenger carriers, leading to a total cost of $241,919. Next, FMCSA divided the two weighted costs by their respective number of small carriers, as described above, arriving at a cost-per-carrier for each segment: $11,854,029/481,788 = $24.60 for property carriers; and $241,919/11,338 = $21.33 for passenger carriers, for a weighted average of $24.50 per small entity. While the preferred option of this proposed rule would clearly impact a substantial number of small entities, the Agency does not consider a weighted average cost of approximately $24.50 per entity per year to be economically significant in light of the estimated average annual revenue of $172,000.52 53 Accordingly, I certify that a regulatory flexibility analysis is not necessary. about $172,000 in revenue annually (adjusted for inflation).44 According to the SBA, motor carriers with annual revenue of $25.5 million are considered small businesses.45 This equates to 148 PUs (25,500,000/172,000). Thus, FMCSA considers motor carriers of property with 148 PUs or fewer to be small businesses for purposes of this analysis. The Agency then looked at the number and percentage of property carriers with recent activity that would fall under that definition (of having 148 PUs or fewer). The results show that at least 99 percent of all interstate property carriers with recent activity have 148 PUs or fewer.46 This amounts to 481,788 carriers. Therefore, the overwhelming majority of interstate carriers of property would be considered small entities. With regard to passenger carriers, the Agency conducted a preliminary analysis to estimate the average number of PUs for a small entity earning $7 million annually, based on an assumption that a passenger-carrying PU generates annual revenues of $150,000. This estimate compares reasonably to the estimated average annual revenue per PU for the trucking industry ($172,000). The Agency used a lower estimate because passenger carriers generally do not accumulate as many VMT per PU as carriers of property; 47 and it is assumed, therefore, that they would generate less revenue on average. The analysis concluded that passenger carriers with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) would be considered small entities. The Agency then looked at the number and percentage of passenger carriers registered with FMCSA that would fall under that definition (of having 47 PUs or fewer). The results show that at least 96 percent of all interstate passenger carriers with recent activity have 47 PUs or fewer.48 This amounts to 11,338 carriers. Therefore, the overwhelming majority of interstate passenger carriers would be considered small entities. In order to estimate the economic impact of the proposed rule on small entities, FMCSA computed a total Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section of the proposed rule. FMCSA will not retaliate against small entities that question or complain about Operations,’’ Final Rule (68 FR 22456, April 23, 2003). 44 The 2000 TTS Blue Book of Trucking Companies, number adjusted to 2008 dollars for inflation. 45 U.S. Small Business Administration Table of Small Business Size Standards matched to North American Industry Classification (NAIC) System codes, effective August 22, 2008. See NAIC subsector 484, Truck Transportation. 46 MCMIS, as of June 17, 2010. 47 FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and 20; http://fmcsa.dot.gov/factsresearch/LTBCF2008/Index-2008. 48 MCMIS, as of June 17, 2010. 49 The total cost in this section does not include costs to the States. 50 The actual cost burden may not necessarily be proportionate to the carrier segment’s share in the industry. Absent information on this distribution, FMCSA applied the above assumption. 51 Excluding costs to the States. 52 Regulatory Analysis for: Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations, Final Rule—Federal Motor Carrier Safety Administration. 68 FR 22456—Published April 23, 2003. 53 The 2000 TTS Blue Book of Trucking Companies, number adjusted to 2008 dollars for inflation. PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 Assistance for Small Entities E:\FR\FM\21DEP1.SGM 21DEP1 80030 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules this proposed rule or any policy or action of the Agency. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1–888–REG– FAIR (1–888–734–3247). Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $140.8 million (which is the value of $100 million in 2009 after adjusting for inflation) or more in any 1 year. Though this proposed rule would not result in such expenditure, FMCSA discusses the effects of this rule elsewhere in this preamble. Paperwork Reduction Act This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). jlentini on DSKJ8SOYB1PROD with PROPOSALS Privacy Impact Assessment FMCSA conducted a Privacy Threshold Analysis for the proposed rule on restricting the use of hand-held mobile telephones by drivers of passenger-carrying CMVs and determined that it is not a privacysensitive rulemaking because the rule would not require any collection, maintenance, or dissemination of Personally Identifiable Information from or about members of the public. Executive Order 13132 (Federalism) A rule has implications for federalism under Executive Order 13132, 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 proposed rule may have some impact on the States. Accordingly, the Agency sought advice from the National Governors Association (NGA), National Conference of State VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 Legislatures (NCSL), and the American Association of Motor Vehicle Administrators (AAMVA) on the topic of mobile telephone use, by letters to each organization, dated April 6, 2010. (Copies of these letters are available in the docket for this rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the opportunity to meet and discuss issues of concern to the States. As a result of these consultation efforts with State and local governments, they would also be able to raise Federalism issues during the comment period for this NPRM. For a further discussion, see the previous section in this NPRM entitled ‘‘Impact on other State Laws— Preemption.’’ Executive Order 12630 (Taking of Private Property) This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 12988 (Civil Justice Reform) This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children) FMCSA analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Executive Order 13211 (Energy Supply, Distribution, or Use) FMCSA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FMCSA preliminarily determined that it is not a ‘‘significant energy action’’ under that order. Though it is nonetheless a potentially ‘‘significant regulatory action’’ under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), has not designated it as a PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 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 mobile telephone use and therefore did not consider any such standards. National Environmental Policy Act The Agency analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), determined under our environmental procedures Order 5610.1, published March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily assessed that this proposed action requires an Environmental Assessment (EA) to determine if a more extensive Environmental Impact Statement (EIS) is required. In the event that FMCSA finds the environmental impacts do not warrant an EIS, FMCSA will issue a Finding of No Significant Impact (FONSI). The findings in the draft EA indicate there are no significant positive or negative impacts to the environment expected from the various options in the proposed rule. There could be minor impacts on emissions, hazardous materials spills, solid waste, socioeconomics, and public health and safety. FMCSA requests comments on the draft EA. FMCSA also analyzed this proposed rule under the Clean Air Act, as amended (CAA), section 176(c), (42 U.S.C. 7401 et seq.) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this proposed action is exempt from the CAA’s general conformity requirement since it would not result in any potential increase in emissions that are above the general conformity rule’s de minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, based on our analysis, it is reasonably foreseeable that the proposed E:\FR\FM\21DEP1.SGM 21DEP1 80031 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules rule would not significantly increase total CMV mileage, nor would it significantly change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor carriers. The proposed action merely would establish requirements to restrict hand-held mobile telephone use while driving CMVs. FMCSA seeks comment on these preliminary determinations. 49 CFR Part 392 Alcohol abuse, Drug abuse, Highway safety, Motor carriers. For the reasons discussed in the preamble, FMCSA proposes to amend 49 CFR parts 383, 384, 390, 391, and 392 as follows: List of Subjects 1. The authority citation for part 383 continues to read as follows: 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 PART 383—COMMERCIAL DRIVER’S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 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. 2. Amend § 383.5 by adding the definitions ’’mobile telephone’’ and ‘‘using a hand-held mobile telephone’’ in alphabetical order and revising the definition of ‘‘texting’’ to read as follows: § 383.5 Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. Definitions. * 49 CFR Part 391 Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation. * * * * Mobile telephone means a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission, 47 CFR 20.3. It does not include twoway or Citizens Band Radio services. * * * * * Texting means manually entering alphanumeric text into, or reading text from, an electronic device. (1) This action includes, but is not limited to, short message service, emailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or entry, for present or future communication. (2) Texting does not include: (i) Inputting, selecting, or reading information on a global positioning system or navigation system; or (ii) 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. * * * * * Using a hand-held mobile telephone means using at least one hand to hold a mobile telephone to conduct a voice communication or to reach for or dial a mobile telephone. * * * * * 3. Amend § 383.51 by adding a new paragraph (c)(10) to Table 2 to read as follows: § 383.51 * Disqualifications of drivers. * * (c)* * * * * TABLE 2 TO § 383.51 If the driver operates a motor vehicle and is convicted of: jlentini on DSKJ8SOYB1PROD with PROPOSALS * (10) Violating a State or local law or ordinance on motor vehicle traffic control restricting or prohibiting the use of a hand-held mobile telephone while driving a CMV.2 For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a CMV, a person required to have a CDL and a CDL holder must be disqualified from operating a CMV for . . . * * * 60 days ................................ Not applicable ...................... 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, VerDate Mar<15>2010 For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a nonCMV, a CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CDL holder’s license or non-CMV driving privileges, for . . . 16:24 Dec 20, 2010 Jkt 223001 For a third or subsequent conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a CMV, a person required to have a CDL and a CDL holder must be disqualified from operating a CMV for . . . * * 120 days .............................. Not applicable. 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, PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 For a third or subsequent conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a non-CMV, a CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CDL holder’s license or non-CMV driving privileges, for . . . * as defined in 49 CFR 390.5, and has halted in a location where the vehicle can safely remain stationary. E:\FR\FM\21DEP1.SGM 21DEP1 80032 * * Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules * * * PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER’S LICENSE PROGRAM 4. The authority citation for part 384 continues to read as follows: Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103 and 215 of Pub. L. 106– 159, 113 Stat. 1753, 1767; and 49 CFR 1.73. 5. Amend § 384.301 by adding a new paragraph (f) to read as follows: § 384.301 Substantial compliance— general requirements. * * * * * (f) A State must come into substantial compliance with the requirements of subpart B of this part in effect as of [INSERT EFFECTIVE DATE] as soon as practical, but not later than [INSERT DATE 3 YEARS AFTER THE EFFECTIVE DATE]. PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 6. The authority citation for part 390 continues to read as follows: jlentini on DSKJ8SOYB1PROD with PROPOSALS Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31144, 31151, 31502, 31504; sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103– 311, 108 Stat. 1673, 1677; sec. 217, 229, Pub. L. 106–159, 113 Stat. 1748, 1767, 1773; and 49 CFR 1.73. 7. Amend § 390.3 by revising paragraphs (f)(1) and (f)(6) to read as follows: § 390.3 General applicability. * * * * * (f) * * * (1) All school bus operations as defined in § 390.5, except for the provisions of §§ 391.15(f), 392.80 and 392.82 of this chapter. * * * * * (6) The operation of commercial motor vehicles designed or used to transport between 9 and 15 passengers (including the driver), not for direct compensation, provided the vehicle does not otherwise meet the definition of a commercial motor vehicle, except that motor carriers and drivers operating such vehicles are required to comply with §§ 390.15, 390.19, 390.21(a) and (b)(2), 391.15(f), 392.80 and 392.82. * * * * * 8. Amend § 390.5 by adding the definitions ’’mobile telephone’’ and ‘‘using a hand-held mobile telephone’’ in alphabetical order and revising the definition of ‘‘texting’’ to read as follows:. § 390.5 * * Definitions. * VerDate Mar<15>2010 * * 16:24 Dec 20, 2010 Jkt 223001 Mobile telephone means a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission, 47 CFR 20.3. It does not include twoway or Citizens Band Radio services. * * * * * Texting means manually entering alphanumeric text into, or reading text from, an electronic device. (1) This action includes, but is not limited to, short message service, emailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or entry, for present or future communication. (2) Texting does not include: (i) Inputting, selecting, or reading information on a global positioning system or navigation system; or (ii) 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. * * * * * Using a hand-held mobile telephone means using at least one hand to hold a mobile telephone to conduct a voice communication or to reach for or dial a mobile telephone. PART 391—QUALIFICATION OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTIONS 9. The authority citation for part 391 continues to read as follows: Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502; sec. 4007(b) of Pub. L. 102–240, 105 Stat. 2152; sec. 114 of Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106–159, 113 Stat. 1767; and 49 CFR 1.73. 10. Revise § 391.2 to read as follows: § 391.2 General exceptions. (a) Farm custom operation. The rules in this part, except for § 391.15 (e) and (f), 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 § 391.15 (e) and (f), do not apply to a driver who is operating a commercial motor vehicle PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 controlled and operated by a beekeeper engaged in the seasonal transportation of bees. (c) Certain farm vehicle drivers. The rules in this part, except for § 391.15 (e) and (f), do not apply to a farm vehicle driver except a farm vehicle driver who drives an articulated (combination) commercial motor vehicle, as defined in § 390.5. For limited exemptions for farm vehicle drivers of articulated commercial motor vehicles, see § 391.67. 11. Amend § 391.15 by adding a new paragraph (f) to read as follows: § 391.15 Disqualification of drivers. * * * * * (f) Disqualification for violation of a restriction on using a hand-held mobile telephone while driving a commercial motor vehicle— (1) General rule. A driver who is convicted of violating the restriction on using a hand-held mobile telephone in § 392.82(a) of this chapter is disqualified from driving a commercial motor vehicle for the period of time specified in paragraph (f)(2) of this section. (2) Duration. Disqualification for violation of a restriction on using a hand-held mobile telephone while driving a commercial motor vehicle— (i) Second violation. A driver is disqualified for 60 days if the driver is convicted of two violations of § 392.82(a) of this chapter in separate incidents committed during any 3-year period. (ii) Third or subsequent violation. A driver is disqualified for 120 days if the driver is convicted of three or more violations of § 392.82(a) of this chapter in separate incidents committed during any 3-year period. PART 392—DRIVING OF COMMERCIAL MOTOR VEHICLES 12. The authority citation for part 392 continues to read as follows: Authority: 49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR 1.73. 13. Add a new § 392.82 to subpart H to read as follows: § 392.82 Restriction on using a hand-held mobile telephone. (a) Restriction. (1) Drivers. No driver shall use a hand-held mobile telephone mobile while driving a CMV. (2) Motor Carriers. No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV. (b) Definitions. For the purpose of this section only, driving means operating a commercial motor vehicle, with the motor running, including while E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor running when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. VerDate Mar<15>2010 16:24 Dec 20, 2010 Jkt 223001 (c) 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 § 390.3(f)(1) and (6) of this chapter are not applicable to this section. (2) Emergencies. Using a hand-held mobile telephone is permissible by PO 00000 Frm 00052 Fmt 4702 Sfmt 9990 80033 drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services. Issued on: December 13, 2010. Anne S. Ferro, Administrator. [FR Doc. 2010–31736 Filed 12–20–10; 8:45 am] BILLING CODE 4910–EX–P E:\FR\FM\21DEP1.SGM 21DEP1

Agencies

[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Proposed Rules]
[Pages 80014-80033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31736]



[[Page 80014]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

[Docket No. FMCSA-2010-0096]
RIN 2126-AB29


Drivers of CMVs: Restricting the Use of Cellular Phones

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to restrict the use of hand-held mobile telephones, including 
hand-held cell phones, by drivers of commercial motor vehicles (CMVs) 
while operating in interstate commerce. The Agency proposes new driver 
disqualification sanctions for interstate drivers of CMVs who fail to 
comply with this Federal restriction and new driver disqualification 
sanctions for commercial driver's license (CDL) holders who have 
multiple convictions for violating a State or local law or ordinance on 
motor vehicle traffic control that restricts the use of hand-held 
mobile telephones. Additionally, interstate motor carriers would be 
prohibited from requiring or allowing drivers of CMVs to engage in the 
use of a hand-held mobile telephone while operating in interstate 
commerce. This rulemaking would improve safety on the Nation's highways 
by reducing the prevalence of distracted driving-related crashes, 
fatalities, and injuries involving drivers of CMVs.

DATES: FMCSA will be accepting both initial comments and reply comments 
in response to this Notice of Proposed Rulemaking (NPRM). Send your 
initial comments on or before February 22, 2011 and reply comments on 
or before March 21, 2011. Initial comments may address any issue raised 
in the NPRM and the background documents in the docket (e.g., 
regulatory evaluation, studies, environmental assessment, etc.). 
Initial comments will be made available promptly electronically, online 
on http://www.regulations.gov, or for public inspection 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. In order to allow sufficient opportunity for interested 
parties to prepare and submit any reply comments, late-filed initial 
comments will not be considered. Reply comments must address only 
matters raised in initial comments and must not be used to present new 
arguments, contentions, or factual material that is not responsive to 
the initial comments.

ADDRESSES: You may submit comments and reply comments identified by 
docket number FMCSA-2010-0096 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rule, contact Mr. Brian Routhier, Transportation Specialist, 
Federal Motor Carrier Safety Administration, Vehicle and Roadside 
Operation Division, at 202-366-4325 or FMCSA_MCPSV@dot.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Abbreviations
III. Background
    A. Rationale for the Scope of the Proposed Rule
    B. Legal Authority
    C. Support for a Restriction on Mobile Telephones
    D. Studies of Mobile Telephone Use While Driving
    E. Existing Mobile Telephone Bans by Federal, State, and Local 
Governments
IV. Discussion of Proposed Rule
V. Regulatory Analyses

I. Public Participation and Request for Comments

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

A. Submitting Comments

    If you submit a comment or a reply comment, please include the 
docket number for this rulemaking (FMCSA-2010-0096), indicate the 
specific section of this document to which each comment applies, and 
provide a reason for each suggestion or recommendation. You may submit 
your comments and material online or by fax, mail, or hand delivery, 
but please use only one of these means. FMCSA recommends that you 
include your name and a mailing address, an e-mail address, or a phone 
number in the body of your document so that FMCSA can contact you if 
there are questions regarding your submission.
    To submit your comment or reply comments online, go to http://www.regulations.gov and click on the ``submit a comment'' box, which 
will then become highlighted in blue. In the ``Document Type'' drop 
down menu, select ``Proposed Rules,'' insert ``FMCSA-2010-0096'' in the 
``Keyword'' box, and click ``Search.'' When the new screen appears, 
click on ``Submit a Comment'' in the ``Actions'' column. If you submit 
your comments by mail or hand delivery, submit them in an unbound 
format, no larger than 8\1/2\; by 11 inches, suitable for copying and 
electronic filing. If you submit comments by mail and would like to 
know that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments or reply comments, as well as any documents 
mentioned in this preamble, go to http://www.regulations.gov and click 
on the ``read comments'' box in the upper right hand side of the 
screen. Then, in the ``Keyword'' box insert ``FMCSA-2010-0096'' and 
click ``Search.'' Next, click the ``Open Docket Folder'' in the 
``Actions'' column. Finally, in the ``Title'' column, click on the 
document you would like to review. If you do not have access to the 
Internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays.

C. Privacy Act

    Anyone is able to search the electronic form of all comments

[[Page 80015]]

received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316).

II. Abbreviations

AAMVA                              American Association of Motor Vehicle
                                    Administrators
ABA                                American Bus Association
Advocates                          Advocates for Highway and Auto Safety
ATA                                American Trucking Associations, Inc.
APTA                               American Public Transportation
                                    Association
CDL                                Commercial Driver's License
CMV                                Commercial Motor Vehicle
CTA                                Chicago Transit Authority
DOT                                United States Department of
                                    Transportation
EA                                 Environmental Assessment
EIS                                Environmental Impact Statement
FCC                                Federal Communications Commission
FMCSA                              Federal Motor Carrier Safety
                                    Administration
FMCSRs                             Federal Motor Carrier Safety
                                    Regulations
FONSI                              Finding of No Significant Impact
FR                                 Federal Register
FRA                                Federal Railroad Administration
GCRTA                              Greater Cleveland Regional Transit
                                    Authority
MBTA                               Massachusetts Bay Transportation
                                    Authority
MCSAC                              Motor Carrier Safety Advisory
                                    Committee
MCSAP                              Motor Carrier Safety Assistance
                                    Program
NAICS                              North American Industry
                                    Classification System
NCSL                               National Conference of State
                                    Legislatures
NGA                                National Governors Association
NPRM                               Notice of Proposed Rulemaking
NSC                                National Safety Council
NTSB                               National Transportation Safety Board
OOIDA                              Owner-Operator Independent Drivers
                                    Association
OMB                                Office of Management and Budget
PAR                                Population Attributable Risk
PDA                                Personal Digital Assistant
TCA                                Truckload Carriers Association
VTTI                               Virginia Tech Transportation
                                    Institute
------------------------------------------------------------------------

III. Background

A. Rationale for the Scope of the Proposed Rule

    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. Researchers classify distraction into several 
categories: Visual (taking one's eyes off the road), manual (taking 
one's hands off the wheel), cognitive (thinking about something other 
than the road/driving), and auditory (listening to someone talking). 
Research shows that using a hand-held mobile telephone while driving 
may pose a higher safety risk than other activities (e.g. eating and 
writing on a pad) because it involves all four types of driver 
distraction. For example, reaching for and dialing a mobile telephone 
are both visual and manual distractions. Using a hand-held mobile 
telephone may reduce a driver's situational awareness, decision making, 
or performance; and it may result in a crash, near-crash, unintended 
lane departure by the driver, or other unsafe driving action. This 
rulemaking proposes to restrict the use of hand-held mobile telephones 
because our research indicates that they are a source of driver 
distraction that could pose a safety risk. Specifically it would 
prohibit a CMV driver from reaching for, holding, or dialing a mobile 
telephone in order to conduct a voice communication while driving. 
Essentially, the CMV driver must be ready to conduct a voice 
communication in compliance with the proposed rule the moment he begins 
driving the vehicle.
    In an effort to understand and mitigate crashes associated with 
driver distraction, the U.S. Department of Transportation (DOT) 
conducted research concerning behavioral and vehicle safety 
countermeasures to driver distraction. Data from studies \1\ indicate 
that both reaching for and dialing a mobile telephone increase the odds 
of involvement in a safety-critical event such as a crash, near crash, 
or unintended lane departure.\2\ Both reaching for and dialing a hand-
held mobile telephone are manual distractions (i.e., hands-off wheel) 
and require substantial visual distraction (i.e., eyes off forward 
roadway) to complete the task; therefore the driver may not be capable 
of safely operating the vehicle.
---------------------------------------------------------------------------

    \1\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. 
(2009) Driver distraction in commercial vehicle operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration, July 2009. Retrieved October 20, 
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010). 
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC: 
Federal Motor Carrier Safety Administration.
    \2\ In popular usage, mobile telephones are often referred to as 
``cell phones.'' As explained later in the NPRM, a variety of 
different technologies are licensed by the Federal Communications 
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; 
thus, the proposed rules here would apply to the range of 
technologies used to provide wireless telephone communications and 
the rule uses the broader term ``mobile telephones.'' However, some 
of the materials discussed in this preamble use the popular term 
``cell phone,'' and the discussion continues that usage in such 
cases.
---------------------------------------------------------------------------

    According to a VTTI study, the odds of being involved in a safety-
critical event are three times greater when the driver is reaching for 
an object than when the driver is not reaching for an object. The odds 
of being involved in a safety-critical event are six times greater 
while the driver is dialing a cell phone than when the driver is not 
dialing a cell phone. These increases in risk are primarily 
attributable to the driver's eyes being off the forward roadway. 
Additionally, these activities have high population attributable risk 
(PAR) percentages (i.e., an activity, which if not undertaken, would 
increase safety most).\3\ The PAR percentage for reaching for an object 
was the highest in the study at 7.6 percent. Because of the physical, 
manual, and visual distractions and the data indicating a safety risk 
associated with the use of hand-held mobile telephones, FMCSA believes 
it is in the interest of public safety to propose, at a minimum, a 
restriction on hand-held mobile telephone use while driving a CMV.
---------------------------------------------------------------------------

    \3\ See Section D. Studies of Mobile Telephone Use While Driving 
for a full discussion.
---------------------------------------------------------------------------

    Other governmental entities have made recommendations on mobile 
telephone use that go beyond our proposed rule. The National 
Transportation Safety Board (NTSB) determined that one probable cause 
of a November 2004 bus crash was the use of a hands-free cell phone. 
This crash was the impetus for an NTSB investigation (NTSB/HAR-06/04 
PB2007-916201) and a subsequent recommendation to FMCSA that the Agency 
prohibit cell phone use by all passenger-carrying CMVs.\4\ FMCSA also 
received recommendations on cell phone use from its Motor Carrier 
Safety Advisory Committee (MCSAC). One of MCSAC's recommendations for 
the National Agenda for Motor Carrier Safety was that FMCSA initiate a 
rulemaking to ban the use of hand-held and hands-free mobile telephones 
while driving.
---------------------------------------------------------------------------

    \4\ National Transportation Safety Board (2006) Motorcoach 
Collision with the Alexandria Avenue Bridge Overpass, George 
Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 
(Highway Accident Report NTSB/HAR-06/04; NTIS report number PB2007-
916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
---------------------------------------------------------------------------

    However, it is not clear if simply talking on a mobile telephone 
presents a significant risk. For example, the same VTTI study that 
detailed the risks of reaching and dialing found that ``talking

[[Page 80016]]

or listening to a hands-free phone'' and ``talking or listening to a 
hand-held phone'' were relatively low risk activities and had only 
brief periods of eyes off forward roadway. It is the action of taking 
one's eyes off the forward roadway to reach for and dial the mobile 
telephone that is highly risky. Therefore, our proposal does not go as 
far as the NTSB and MCSAC recommendations.
    While some States have gone further than this proposed restriction 
on hand-held mobile telephones, no State has completely banned mobile 
telephone use. Nine States and the District of Columbia have traffic 
laws prohibiting all motor vehicle drivers from using a hand-held 
mobile telephone while driving. Some States have gone further for 
certain categories of drivers. Nineteen States and the District of 
Columbia prohibit the use of all mobile telephones while driving a 
school bus. Transit bus and motorcoach drivers are the focus of 
stricter mobile telephone rules in some States and local 
jurisdictions.\5\ This NPRM, which proposes to restrict hand-held 
mobile telephone use by all CMV drivers, is in line with existing 
regulations that hold CMV drivers to higher standards.
---------------------------------------------------------------------------

    \5\ IIHS list of cellphone laws. http://www.iihs.org/laws/cellphonelaws.aspx
---------------------------------------------------------------------------

    This rulemaking would improve safety on the Nation's highways by 
reducing the prevalence of, or preventing, certain truck- and bus-
related crashes, injuries, and fatalities associated with distracted 
driving. Our proposal would restrict hand-held mobile telephone use, 
but the Agency requests comment on whether we should implement in full 
the NTSB and MCSAC recommendations. The Agency requests public comment 
on the feasibility, operational impact, and safety benefits of 
prohibiting hands-free mobile telephone technology by drivers of CMVs 
as well. Because the Agency does not intend that this rulemaking 
preclude the use of innovative technologies that could be safely used 
by CMV drivers to facilitate mobile telephone use, the Agency will 
consider, through this rulemaking process, all information from 
interested parties, as it assesses the risks, feasibility, and safety 
of adopting an approach in the final rule. Public comment on these 
issues should also recognize our responsibility to ensure that CMV 
drivers are held to the highest degree of safety.

B. Legal Authority

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

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

    This proposed rule is based primarily on 49 U.S.C. 31136(a)(1), 
which requires regulations that ensure that CMVs are operated safely, 
and secondarily on section 31136(a)(2), to the extent that drivers' use 
of mobile telephones might impact their ability to operate CMVs safely. 
This NPRM does not address the physical condition of drivers (49 U.S.C. 
31136(a)(3)), nor does it impact possible physical effects caused by 
driving CMVs (49 U.S.C. 31136(a)(4)).
    The relevant provisions of the Federal Motor Carrier Safety 
Regulations (FMCSRs) (49 CFR subtitle B, chapter III, subchapter B) 
apply to CMV drivers and employers operating a CMV included in the 
statutory authority of the 1984 Act. The 1984 Act defines a CMV as a 
self-propelled or towed vehicle used on the highways to transport 
persons or property in interstate commerce; and that either: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 10,001 pounds or 
greater; (2) is designed or used to transport more than 8 passengers 
(including the driver) for compensation; (3) is designed or used to 
transport more than 15 passengers, not for compensation; or (4) is 
transporting any quantity of hazardous materials requiring placards to 
be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating 
CMVs are subject to the FMCSRs, except those who are employed by 
Federal, State, or local governments (49 U.S.C. 31132(2)). The proposed 
rule would also require employers to ensure their drivers comply with 
the restrictions on use of hand-held mobile telephones while driving 
CMVs.
    In addition to the statutory exemption for government employees, 
there are several regulatory exemptions in the FMCSRs that are 
authorized under the 1984 Act, including, among others, one for school 
bus operations and one for CMVs designed or used to transport between 9 
and 15 passengers (including the driver) not for direct compensation 
(49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only 
applies to interstate transportation of school children and/or school 
personnel between home and school. This particular exemption is not 
based on any statutory provisions, but is instead a discretionary rule 
promulgated by the Agency. Therefore, FMCSA has authority to modify the 
exemption. Modification of the school bus operations exemption requires 
the Agency to find that such action ``is necessary for public safety, 
considering all laws of the United States and States applicable to 
school buses'' (former 49 U.S.C. 31136(e)(1)).\6\ Likewise, FMCSA has 
authority to modify the non-statutory exemption for small, passenger-
carrying vehicles not for direct compensation, but is not required to 
comply with former 49 U.S.C. 31136(e).\7\ FMCSA is proposing to apply 
restrictions on hand-held mobile telephone use to both school bus 
operations by private operators in interstate commerce and small 
passenger-carrying vehicles not for direct compensation, although they 
would continue to be exempt from the rest of the FMCSRs. Other than 
transportation covered by statutory

[[Page 80017]]

exemptions, FMCSA has authority to restrict the use of mobile 
telephones by drivers operating CMVs.
---------------------------------------------------------------------------

    \6\ Former section 31136(e)(1) was amended by section 4007(c) of 
the Transportation Equity Act for the 21st Century, Public Law 105-
178, 112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 
also provides that the amendments made by section 4007(c) ``shall 
not apply to or otherwise affect a waiver, exemption, or pilot 
program in effect on the day before the date of enactment of [TEA-
21] under * * * section 31136(e) of title 49, United States Code.'' 
(Section 4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 
U.S.C. 31136).) The exemption for school bus operations in 49 CFR 
390.3(f)(1) became effective on November 15, 1988, and was adopted 
pursuant to section 206(f) of the 1984 Act, later codified as 
section 31136(e) (Federal Motor Carrier Safety Regulations; General, 
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law 
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by 
FMCSA affecting the school bus operations exemption would require 
the Agency to comply with former section 31136(e)(1).
    \7\ The exemption in 49 CFR 390.3(f)(6) was not adopted until 
2003, after the enactment of TEA-21, in a final rule titled, 
``Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used In Interstate Commerce'' (68 FR 
47860, August 12, 2003).
---------------------------------------------------------------------------

    For any violation, such a restriction may be subject to civil 
penalties 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), and were recently adopted by the Agency in its final rule 
prohibiting texting by CMV drivers while operating in interstate 
commerce (49 CFR 391.15(e); 75 FR 59118, September 27, 2010). In 
summary, both a restriction on the use of hand-held mobile telephones 
and associated sanctions, including civil penalties and 
disqualifications, are authorized by statute and regulation for 
operators of CMVs, as defined above, in interstate commerce, with 
limited exceptions. But before prescribing any regulations under the 
1984 Act, FMCSA must consider their costs and benefits (49 U.S.C. 
31136(c)(2)(A)).
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 
27, 1986), which authorized creation of the CDL program, is the primary 
basis for licensing programs for certain large CMVs. There are several 
key distinctions between the authority conferred under the 1984 Act and 
that under the 1986 Act. First, the CMV for which a CDL is required is 
defined under the 1986 Act, in part, as a motor vehicle operating ``in 
commerce,'' a term separately defined to cover broadly both interstate 
commerce and operations that ``affect'' interstate commerce (49 U.S.C. 
31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle 
used in commerce to transport passengers or property that: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 26,001 pounds or 
greater; (2) is designed to transport 16 or more passengers including 
the driver; or (3) is used to transport certain quantities of 
``hazardous materials,'' as defined in 49 CFR 383.5 (49 U.S.C. 
31301(4)). In addition, a provision in the FMCSRs implementing the 1986 
Act recognizes that all school bus drivers (whether government 
employees or not) and other government employees operating vehicles 
requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or 
designed to transport 16 or more passengers) are subject to the CDL 
standards set forth in 49 CFR 383.3(b).
    There are several statutory and regulatory exceptions from the CDL 
requirements, which include the following individuals: Military service 
members who operate a CMV for military purposes (a mandatory exemption 
for the States to follow) (49 CFR 383.3(c)); farmers; firefighters; CMV 
drivers employed by a unit of local government for the purpose of snow/
ice removal; and persons operating a CMV for emergency response 
activities (all of which are permissive exemptions for the States to 
implement at their discretion) (49 CFR 383.3(d)). States may also issue 
certain restricted CDLs to other categories of drivers under 49 CFR 
383.3(e)-(g). Drivers with such restricted CDLs may still be covered by 
a disqualification under the 1986 Act arising from the use of hand-held 
mobile telephones while driving CMVs.
    The 1986 Act does not expressly authorize the Agency to adopt 
regulations governing the safety of CMVs operated by drivers required 
to obtain a CDL. Most of these drivers (those involved in interstate 
trade, traffic, or transportation) are subject to safety regulations 
under the 1984 Act, as described above. The 1986 Act, however, does 
authorize disqualification of CDL drivers by the Secretary. It contains 
specific authority to disqualify CDL drivers for various types of 
offenses, whether those offenses occur in interstate or intrastate 
commerce. This authority exists even if drivers are operating a CMV 
illegally because they did not obtain a CDL.
    In general, the 1986 Act explicitly identifies several ``serious 
traffic violations'' as grounds for disqualification (49 U.S.C. 
31301(12) and 31310). In addition to the specifically enumerated 
``serious traffic violations,'' the 1986 Act provides related authority 
that allows FMCSA to designate additional serious traffic violations by 
rulemaking if the underlying offense is based on the CDL driver 
committing a violation of a ``State or local law on motor vehicle 
traffic control'' (49 U.S.C. 31301(12)(G)). The FMCSRs state, however, 
that unless and until a CDL driver is convicted of the requisite number 
of specified offenses within a certain time frame (described below), 
the required disqualification may not be applied (49 CFR 383.5 
(defining ``conviction'' and ``serious traffic violation'') and 
383.51(c)).
    Under the statute, a driver who commits two serious traffic 
violations in a 3-year period while operating a CMV must be 
disqualified from operating a CMV that requires a CDL for at least 60 
days (49 U.S.C. 31310(e)(1)). A driver who commits three or more 
serious traffic violations in a 3-year period while operating a CMV 
must be disqualified from operating a CMV that requires a CDL for at 
least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile 
telephones results in distracted driving and increases the risk of CMV 
crashes, fatalities, and injuries, FMCSA is now proposing that 
violations by a CDL driver of State or local law or ordinance on motor 
vehicle traffic control that restricts the use of such mobile 
telephones while driving CMVs should result in a disqualification under 
this provision.
    FMCSA is authorized to carry out these statutory provisions by 
delegation from the Secretary as provided in 49 CFR 1.73(e) and (g).

C. Support for a Restriction on Mobile Telephones

    There is an overwhelming amount of public support for reducing 
distracted driving, including hand-held mobile telephone use, while 
operating a CMV. It is likely that most motorists either have first-
hand experience with or know someone who had a motor vehicle crash or 
near-crash event involving a distracted driver. There appears to be a 
steady increase in the use of electronic devices. Moreover, as outlined 
in the examples below, there is some evidence that CMV crashes and 
other incidents have been caused by the use of electronic devices.
    FMCSA is aware of several recent CMV crashes in which the use of a 
mobile telephone may have contributed to the crash. In one case, 
according to media reports, a truck driver from Arkansas told police 
she was talking on her cell phone when she became involved in a crash 
that killed two boys on May 9, 2010. In another media report, on March 
26, 2010, a tractor trailer crossed the median strip of Interstate 65 
in central Kentucky and collided with a van transporting 9 adults, two 
children, and an infant. All the adults and the infant in the van and 
the truck driver were killed. The NTSB is conducting an investigation 
into the crash, including attempting to determine if a mobile telephone 
was a factor in the crash.\8\ According to media reports, in February 
2010, a Montgomery County, Pennsylvania, school bus driver was 
allegedly talking on his cell phone before a deadly crash.\9\
---------------------------------------------------------------------------

    \8\ http://www.ntsb.gov/Pressrel/2010/100514.html.
    \9\ Driver To Stand Trial In Fatal School Bus Crash. (April 20, 
2010) Philadephia, PA: KYW-TV. Retrieved from the CBS3 Web site, 
July 21, 2010, from: http://cbs3.com/local/montgomery.county.school.2.1645628.html.
---------------------------------------------------------------------------

    In light of these incidents and the potential for more crashes due 
to

[[Page 80018]]

distracted driving, FMCSA proposes restrictions on the use of hand-held 
mobile telephones. We are requesting comments on whether to propose a 
complete prohibition on mobile telephone use by drivers of CMVs. We 
have included in this NPRM information on research studies as well as 
the positions of safety organizations and industry on the use of mobile 
telephones by CMV drivers.
National Transportation Safety Board Recommendation
    On November 14, 2004, a motorcoach crashed into a bridge overpass 
on the George Washington Memorial Parkway in Alexandria, Virginia. The 
National Transportation Safety Board (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. This crash was the impetus for an 
NTSB investigation (NTSB/HAR-06/04 PB2007-916201) and a subsequent 
recommendation to FMCSA regarding cell phone use by passenger-carrying 
CMVs.\10\ This rulemaking addresses part of this outstanding 
recommendation.
---------------------------------------------------------------------------

    \10\ National Transportation Safety Board (2006) Motorcoach 
Collision with the Alexandria Avenue Bridge Overpass, George 
Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 
(Highway Accident Report NTSB/HAR-06/04; NTIS report number PB2007-
916201). Retrieved July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
---------------------------------------------------------------------------

    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'' (VTTI Study (2009)) was 
published on October 1, 2009. This report is summarized in section D.
    Also in 2004, the NTSB investigated a truck-tractor median 
crossover crash in Sherman, Texas, that resulted in a collision and 
fire. The NTSB's report cited one probable cause as the driver's 
attempted or imminent use of a wireless device as a distraction from 
his driving duties.
    The Agency will post in the rulemaking docket any additional 
information it obtains about these investigations that might not be 
generally available to the public.
FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
    Section 4144 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to 
establish a Motor Carrier Safety Advisory Committee (MCSAC). The 
committee provides advice and recommendations to the FMCSA 
Administrator on motor carrier safety programs and regulations and 
operates in accordance with the Federal Advisory Committee Act (5 
U.S.C. App. 2).
    In MCSAC's March 27, 2009, report to FMCSA titled ``Developing a 
National Agenda for Motor Carrier Safety,'' MCSAC recommended that 
FMCSA adopt new Federal rules concerning distracted driving.\11\ MCSAC 
reported, ``Documented research shows that there are cognitive 
distractions and increases in crashes from cellular phone use and text 
messaging.'' Therefore, one of MCSAC's recommendations for the National 
Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to 
ban the use of hand-held and hands-free mobile telephones while 
driving.
---------------------------------------------------------------------------

    \11\ Parker, David R., Chair, Motor Carrier Safety Advisory 
Committee (March 27, 2009). Letter to Rose A. McMurray, Acting 
Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor 
Vehicle Safety. Retrieved July 23, 2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-01FinalReportandLettertoAdministrator090428.pdf.
---------------------------------------------------------------------------

Motorcoach Safety Action Plan
    In the November 2009 DOT Motorcoach Safety Action Plan, DOT 
identified seven priority action items that will have the greatest 
impact in reducing motorcoach crashes, injuries, and fatalities. One of 
these is a recommendation to initiate rulemaking to propose prohibiting 
texting and limiting the use of mobile telephones and other devices by 
motorcoach drivers.\12\
---------------------------------------------------------------------------

    \12\ U.S. Department of Transportation (November 2009). 
Motorcoach Safety Action Plan. (DOT HS 811 177). Retrieved July 23, 
2010, from: http://www.fmcsa.dot.gov/documents/safety-security/MotorcoachSafetyActionPlan_finalreport-508.pdf.
---------------------------------------------------------------------------

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 the need and widespread support for a ban against 
texting and mobile telephone use while driving. Attendees included 
safety experts; researchers; elected officials, including four U.S. 
Senators and several State legislators; safety advocacy groups; senior 
law enforcement officials; and representatives of the 
telecommunications and transportation industries. 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.
    U.S. Transportation Secretary Ray LaHood stated: ``Keeping 
Americans safe is without question the Federal government's highest 
priority--and that includes safety on the road, as well as on mass 
transit and rail.'' In addition, the Secretary pledged to work with 
Congress to ensure that the issue of distracted driving is 
appropriately addressed.\13\ At the conclusion of the Summit, the 
Secretary announced a series of concrete actions that the Obama 
Administration and DOT are taking to address distracted driving, 
including immediately starting rulemakings that would ban texting and 
restrict, to the extent possible, the use of mobile telephones 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).
---------------------------------------------------------------------------

    \13\ U.S. Department of Transportation (October 1, 2009). U.S. 
Transportation Secretary Ray LaHood Announces Administration-Wide 
Effort to Combat Distracted Driving (DOT 156-09). Retrieved July 23, 
2010, from: http://www.dot.gov/affairs/2009/dot15609.htm.
---------------------------------------------------------------------------

    As a follow-up to the Summit, and based on data from studies on 
distracted driving, FMCSA initiated a number of actions to combat 
distracted driving by CMV drivers. Specifically, FMCSA issued 
Regulatory Guidance (75 FR 4305, January 27, 2010) that addressed 
texting by CMV drivers and issued a final rule (75 FR 59118, September 
27, 2010) that prohibits texting by CMV drivers. Finally, DOT held a 
second Distracted Driving Summit on September 21, 2010,
Safety Advocacy Organizations
    Numerous safety advocacy groups voiced support for a prohibition on 
mobile telephone use while driving. In January 2009, the National 
Safety Council (NSC) called for a nationwide prohibition on all cell 
phone use while driving.\14\ The NSC is focused on

[[Page 80019]]

alerting the American public to the fact that different distractions 
have different levels of crash risk. Additionally, Advocates for 
Highway and Auto Safety (Advocates) applauded DOT's effort to consider 
banning texting and restricting cell phone use by operators of CMVs. 
Advocates recently filed a petition for rulemaking requesting 
consideration of such action on the use of a wide array of electronic 
devices used by commercial drivers.\15\
---------------------------------------------------------------------------

    \14\ National Safety Council, (n.d.). Distracted Driving. 
Retrieved July 21, 2010, from: http://www.nsc.org/safety_road/Distracted_Driving/Pages/distracted_driving.aspx.
    \15\ 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 July 21, 2010, from the 
Advocates for Highway and Auto Safety Web site: http://www.saferoads.org/files/file/Distracted%20Driving%20Statement%20by%20Judith%20Stone%20October%201,%202009.pdf.
---------------------------------------------------------------------------

Transportation Industry Associations
Trucking Industry
    The American Trucking Associations, Inc. (ATA) adopted a policy 
supporting the safe use of technologies and encourages drivers and/or 
motor carriers to consider a range of policies and safeguards intended 
to reduce, minimize, and/or eliminate driver distractions that may be 
caused by the increased use of electronic technologies. ATA's policy 
recommends that manufacturers and others adopt awareness, training, and 
safety policies on the use of such technologies--unless they are 
already regulated--while operating a motor vehicle. ATA believes that 
the use of hand-held electronic devices and the act of texting with 
such devices while a motor vehicle is in motion should be 
prohibited.\16\ Another one of the initiatives on ATA's safety agenda 
is their policy on the use of non-integrated technologies while the 
vehicle is in motion.\17\
---------------------------------------------------------------------------

    \16\ 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 July 21, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
    \17\ Boyce, C. (June 9, 2009) ATA Unveils Progressive New 
Highway Safety Agenda. Retrieved July 21, 2010, from: http://www.truckline.com/pages/article.aspx?id=541%2F%7b8E1C7279-ED27-4C03-B189-CEEEE26BBB12%7d
---------------------------------------------------------------------------

    In fact, many ATA member fleets have already adopted company 
policies designed to reduce distractions while operating CMVs. Many of 
these fleets do not allow drivers to operate any electronic devices at 
all, including dispatching equipment, while the vehicle is moving. ATA 
conducted an opinion survey of its safety committees on the use of 
``non-integrated electronic devices.'' From the responses of these 
industry leaders, ATA found that 67 percent of respondents had a policy 
restricting or limiting the use of portable electronic devices while 
driving. United Parcel Service, Inc. has an existing policy of no 
distractions while behind the wheel (e.g., two hands on the wheel and 
no two-way communication); and FedEx does not allow drivers to use any 
electronic device while operating FedEx vehicles.\18\ Additionally, 
ExxonMobil and Shell are examples of large companies that prohibit 
employees' use of any type of cell phone while driving during work 
hours.\19\ Because numerous large commercial trucking operations 
already have policies that prohibit the use of portable electronic 
devices while driving, a restriction on hand-held mobile telephone use 
is not expected to have a significant adverse impact on trucking 
fleets.
---------------------------------------------------------------------------

    \18\ Halsey, A. (October 2, 2009). Obama to Federal Employees: 
Don't Text and Drive. Washingtonpost.com. Retrieved July 21, 2010, 
from: http://www.washingtonpost.com/wp-dyn/content/article/2009/10/01/AR2009100103447_pf.html.
    \19\ Insurance Information Institute (December 2009). Cellphones 
and Driving. Retrieved July 21, 2010, from: http://www.iii.org/IU/Cellphone-and-driving/.
---------------------------------------------------------------------------

    The Owner-Operators Independent Drivers Association (OOIDA) called 
upon government entities to aggressively pursue opportunities to 
educate the motoring public on safe driving practices and encourages 
law enforcement agencies to fully enforce existing laws pertaining to 
inattentive or negligent driving.\20\ The Truckload Carriers 
Association (TCA) supports the safe use of technologies and encourages 
drivers and/or motor carriers to consider a range of policies and 
safeguards intended to reduce, minimize, and/or eliminate driver 
distractions caused by the increased use of electronic technologies 
(e.g., global positioning systems, cellular phones, etc.) during the 
operation of all types of motor vehicles.\21\
---------------------------------------------------------------------------

    \20\ OOIDA (n.d.). Distracted Driving. Retrieved from the OOIDA 
Web site, July 22, 2010, from: http://ooida.com/Issues&Actions/Issues/DistractedDriving/distracted-driving.htm.
    \21\ Truckload Carriers Association (March 8, 2009). Safe Use of 
Technology. Retrieved July 21, 2010, from: http://www.truckload.org/Safe-Use-of-Technology.
---------------------------------------------------------------------------

Motorcoach Operators
    A spokesman for the United Motorcoach Association, which represents 
tour bus operators, stated that motorcoach operators should not 
tolerate drivers using mobile telephones unless there is an emergency. 
The American Bus Association (ABA) supports safety initiatives, and the 
safety culture of ABA and its member operators support such bans. ABA's 
pre-trip passenger safety messaging video instructs passengers, not 
drivers, to dial 911 in case of emergency. Only in extreme emergencies 
should drivers ever use a cell phone while operating motorcoaches. 
Furthermore, ABA asserted that hands-free use of cell phones is no 
better than hand-held cell phone use, as cognitive distraction is the 
safety issue in question.\22\ The ABA also drafted a model policy for 
members that states in part: ``Cell phones and regulated electronic 
devices (REDs) are not to be used while the vehicle is in motion. 
Incoming calls or transmissions received on company-provided or 
authorized cell phones or REDs should go into voicemail and may be 
checked only when the bus is parked in a safe location.''\23\ Numerous 
large motorcoach and bus operations have already adopted policies that 
restrict the use of portable electronic devices while driving (many of 
them are more restrictive than the ABA model policy).
---------------------------------------------------------------------------

    \22\ Pantuso, P. (October 6, 2009). Government Seeks Tougher 
Laws on Distracted Driving. Retrieved July 21, 2010, from the 
American Bus Association Web site: http://www.buses.org/files/MemberAlertTextingCellPhones100509[1].pdf.
    \23\ ABA Strategic Safety Committee (2010). Recommended Model 
Company Policy: Cell Phones and Electronic Devices (REDs). Available 
in the docket for this rulemaking.
---------------------------------------------------------------------------

School Bus Operations
    School bus operations are the focus of many States and local 
governments that have implemented distracted driving policies and laws; 
currently, 19 States and the District of Columbia \24\ ban school bus 
drivers from using a mobile telephone while driving. Many cities, 
towns, and counties prohibit mobile telephone use or texting by school 
bus operators. The American School Bus Council, whose membership 
includes: National Association for Pupil Transportation, National 
Association of State Directors of Pupil Transportation Services, 
National School Transportation Association, Blue Bird Corporation, IC 
Corporation, and Thomas Built Buses, recommends prohibiting the use of 
cell phones or other portable electronic devices--even those equipped 
with hands-free features--while driving and banning the use of cell 
phones while supervising the loading and unloading of students.\25\
---------------------------------------------------------------------------

    \24\ Vermette, E. (2010). Curbing Distracted Driving 2010 Survey 
of State Safety Programs. Retrieved July 21, 2010, from: http://www.distraction.gov/files/research/GHSA-2010_distraction.pdf.
    \25\ American School Bus Council (February 14, 2007). American 
School Bus Council Exceeds NTSB's Recommendation on Cell Phone Use 
by School Bus Drivers. Retrieved July 23, 2010, from: http://www.americanschoolbuscouncil.org/uploads/pdf/Guidelines_Release.pdf.

---------------------------------------------------------------------------

[[Page 80020]]

American Public Transportation Association (APTA)
    On December 31, 2009, the APTA Bus Safety Working Group published a 
Recommended Practice regarding employee-controlled distractions while 
operating a vehicle on agency time. The intent of the voluntary 
standard is to provide transit agencies with a guideline to develop 
policies and standard operating procedures regarding operator 
controlled distractions.\26\
---------------------------------------------------------------------------

    \26\ APTA Bus Safety Working Group (December 31, 2009). Reducing 
Driver-Controlled Distractions While Operating a Vehicle on Agency 
Time. Retrieved from the American Public Transportation Association 
Web site, July 23, 2010, from: http://www.aptastandards.com/Portals/0/Bus_Published/APTA-BTS-BS-RP-005-09_employee_controlled_distractions.pdf.
---------------------------------------------------------------------------

    FMCSA solicits comments about companies' or organizations' policies 
on drivers' use of mobile telephones and other portable electronic 
devices while driving CMVs on our Nation's highways.

D. Studies of Mobile Telephone Use While Driving

    There are a number of studies from both government and private 
sources related to distracted driving. However, there are few studies 
of distracted driving that focus on the CMV driver. The following peer-
reviewed studies were considered while developing this NPRM. These 
studies use different methodologies to analyze driver distraction. 
There are advantages and disadvantages to each methodology as follows:
     Simulator studies, and to some extent test-track studies, 
allow for experimental control over and measurement of the cognitive 
distractions, such as the type of phone conversation. These studies may 
have unrealistic driving and cell phone use conditions because they are 
not conducted on public roadways and therefore lack many of the risks 
associated with real world driving;
     Naturalistic driving studies use cameras and 
instrumentation in participants' vehicles to provide a clear picture of 
driver distraction under real-world driving conditions. However, these 
studies may have a small sample size of some of the individual 
distractions.

Overall, it is important to keep these differences in mind while 
comparing the results from different research methods. Regardless, 
these studies illustrate degradations in driver performance due to the 
effects of driver distraction.
Driver Distraction in Commercial Vehicle Operations \27\
---------------------------------------------------------------------------

    \27\ 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: FMCSA, July 2009. 
Retrieved July 26, 2010, from: http://www.fmcsa.dot.gov/facts-research/research-technology/report/FMCSA-RRR-09-042.pdf.
---------------------------------------------------------------------------

    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed the study titled, ``Driver Distraction in 
Commercial Vehicle Operations,'' and released the final report on 
October 1, 2009. The purpose of the VTTI Study (2009) was to 
investigate the prevalence of driver distraction in CMV safety-critical 
events recorded in a naturalistic data set that included over 200 truck 
drivers and data from 3 million miles of operations. Of the 4,452 
safety-critical events noted in the combined data, 60 percent had some 
type of non-driving related task listed as a potential contributing 
factor. Safety-critical events are crashes, near-crashes, crash-
relevant conflicts, and unintentional lane deviations.

[[Page 80021]]

[GRAPHIC] [TIFF OMITTED] TP21DE10.067

    The VTTI Study (2009) separately examined the different sub-tasks 
associated with cell phone use. Although talking on the cell phone did 
not show an increased risk, as seen in Table 1, a driver must take 
several risk-increasing steps in order to use the electronic device for 
conversation. In particular, as also shown in Table 1, the use of a 
cell phone involves a variety of sub-tasks, including reaching for and 
holding the phone, performing the visually complex process of manually 
dialing the phone, and then carrying out the conversation. In FMCSA's 
view, the risk associated with cell phone use should be viewed as a 
series of related sub-tasks, not all having equal risk. The odds of 
being involved in a safety-critical event are three times greater while 
the driver is reaching for an object than when the driver is not 
reaching for an object. The odds of being involved in a safety- 
critical event are six times greater while the driver is dialing a cell 
phone than when the driver is not dialing a cell phone. But, according 
to the VTTI study, the odds of being involved in a safety critical 
event while talking or listening to a hand-held or hands-free phone do 
not show an increased risk.
    In addition, the population attributable risk (PAR) incorporates 
the frequency of engaging in a non-driving related task by the 
population of drivers. If a task is done more frequently by a large 
population of drivers, it will have a greater PAR percentage. High PAR 
percentages occurred for commonly performed tasks (i.e., a task, which 
if removed, would increase safety most). The PAR percentage for 
reaching for an object was the highest in the study at 7.6 percent. In 
other words, there would be 7.6 percent fewer safety- critical events, 
if reaching for an object while driving never occurred. The risk of 
being involved in a safety-critical event was greater for other 
distracting activities, but the prevalence of the distractions was 
greatest for reaching for an object. In contrast, the PAR for talking 
on a hand-held phone was relatively low, at 0.2 percent, and the PAR 
was not calculated for talking on a hands-free cell phone.
    FMCSA constructed a diagram that shows the relationship between the 
odds ratios of various activities conducted while driving and their 
associated eyes-off-roadway times. As seen in Diagram 1 (constructed 
from data in the VTTI study), those tasks that drew the driver's eyes 
away from the forward road led to a significant increase in risk. For 
example, texting, dialing, using other electronic devices, reading a 
map or grooming stand out as risky tasks.

[[Page 80022]]

[GRAPHIC] [TIFF OMITTED] TP21DE10.068

    During the 3.8 seconds the driver has his eyes off the forward 
roadway while dialing his mobile telephone, at 55 miles per hour, the 
CMV travels about the length of a football field, 306 feet.
    A complete copy of the final report for the VTTI Study (2009) is 
included in the docket referenced in the beginning of this rulemaking 
notice.
Distraction in Commercial Trucks and Buses: Assessing Prevalence and 
Risk in Conjunction With Crashes and Near-Crashes\28\
---------------------------------------------------------------------------

    \28\ 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.
---------------------------------------------------------------------------

    The purpose of this research was to conduct an analysis of 
naturalistic data collected by DriveCam[supreg]. The introduction of 
naturalistic driving studies that record drivers (through video and 
kinematic \29\ vehicle sensors) in actual driving situations created a 
scientific method to study driver behavior under the daily pressures of 
real-world driving conditions.
---------------------------------------------------------------------------

    \29\ Kinematics is a branch of physics that deals with the 
motion of a body or system without reference to force and mass.
---------------------------------------------------------------------------

    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; they 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 data set.
    Odds ratios were calculated to show a measure of association 
between involvement in a safety-critical event, which includes crashes, 
and performing a non-driving related task. The odds ratios show the 
odds of being involved in a safety critical event when a non-driving 
related task is present compared

[[Page 80023]]

to when there is no non-driving related task. The non-driving related 
task, ``any cell phone usage,'' includes all the specific cell phone 
sub-tasks, such as reaching for, dialing, talking or listening to a 
hand-held or hands-free cell phone.
    Drivers increased their odds of involvement in a safety-critical 
event by 1.14 times for ``any cell phone usage'' while driving. 
However, when the cell phone task was disaggregated into sub-tasks, the 
study results show that the sub-tasks involved with using a cell phone 
have different risks, some increasing and some decreasing the odds of 
involvement in a safety-critical event. The odds of involvement in a 
safety critical event increased significantly when truck and bus 
drivers performed certain non-driving related tasks:
     Reaching for a cell phone while driving increased the odds 
by 3.7 times;
     Dialing a cell phone while driving increased the odds by 
3.5 times;
     Reaching for a headset/earpiece increased the odds by 3.4 
times.

Drivers decreased the odds of being involved in a safety-critical event 
by .65 times while talking or listening on a hands-free cell phone. 
However, the odds ratio for talking/listening should not ignore the 
fact that a person usually has to reach for and dial a cell phone in 
order to talk or listen. Both consuming food/drink and talking/
listening on a hand-held cell phone (odds ratios = 1.11 and 0.89, 
respectively) had non-significant odds ratios (i.e., no increase or 
decrease in risk).
The Impact of Cognitive Distraction on Driver Visual Behavior and 
Vehicle Control
    While conclusive evidence is still lacking, several studies focused 
on cognitive distraction and its influence on driver performance. 
Harbluk, Noy, and Eizenman (2002) examined the impact of cognitive 
distraction on drivers' visual behavior and vehicle control.\30\ This 
instrumented-vehicle study examined changes in drivers' visual scanning 
driving patterns under three tasks varying in cognitive complexity: no 
distraction, an easy cognitive task (i.e., simple addition), and a 
difficult cognitive task (i.e., difficult addition). As predicted, 
drivers had significantly increased hard-braking events under 
distracted driving conditions. Interestingly, under distracted driving 
conditions, drivers made fewer eye movements, spent more time focusing 
on the central visual field, and spent less time scanning the right 
periphery. This suggests that visual scanning collapses to a minimal 
level under distracted driving conditions, increasing the risk that a 
driver will miss a critical event.
---------------------------------------------------------------------------

    \30\ Harbluk, J. L., Noy, Y. I., & Eizenman, M. (2002). The 
Impact of Cognitive Distraction on Driver Visual Behavior and 
Vehicle Control (Report No. TP 13889E). Ottawa: Transport Canada. 
Retrieved July 26, 2010, from: http://people.usd.edu/~schieber/
materials/trans-canada-13889.pdf.
---------------------------------------------------------------------------

A Decrease in Brain Activation Associated With Driving When Listening 
to Someone Speak
    Just, Keller, and Cynkar (2008) used functional magnetic resonance 
imaging (MRI) to investigate the impact of concurrent auditory language 
comprehension on the brain activity associated with a simulated driving 
task.\31\ Participants steered a vehicle along a curving virtual road, 
either undisturbed or while listening to spoken sentences that they 
judged as true or fals