Drivers of CMVs: Restricting the Use of Cellular Phones, 75470-75488 [2011-30749]

Download as PDF 75470 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations b. Under Chapter 21, Subchapter B, by adding a new entry for Section 2123; ■ c. Under Chapter 21, Subchapter H, by adding a new entry for Section 2143. The additions read as follows: ■ § 52.970 * Identification of plan. * * (c) * * * * * EPA APPROVED LOUISIANA REGULATIONS IN THE LOUISIANA SIP State citation State approval date Title/subject EPA approval date Comments LAC Title 33. Environmental Quality Part III. Air Chapter 1—General Provisions * * * Section 111 ............................. Definitions .............................. * * * 8/20/2010 * * 12/2/2011 [Insert FR page number where document begins]. * * * * Revisions to Section 111 approved in the Louisiana Register August 20, 2010 (LR 36:1773). * * Chapter 21—Control of Emissions of Organic Compounds * * * * * * * Subchapter B—Organic Solvents Section 2123 ........................... * Organic Solvents ................... * 4/20/2011 * 12/2/2011 [Insert FR page number where document begins]. * * Revisions to Section 2123 approved in the Louisiana Register April 20, 2011 (LR 37:1150). * * Subchapter H—Graphic Arts Section 2143 ........................... * Graphic Arts (Printing) by Rotogravure and Flexographic Processes. Control Requirements. * 6/20/2009 * [FR Doc. 2011–30924 Filed 12–1–11; 8:45 am] BILLING CODE 6560–50–P 12/2/2011 [Insert FR page number where document begins]. * * DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 177 [Docket No. PHMSA–2010–0227(HM–256A)] RIN 2126–AB29 Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384, 390, 391, and 392 [Docket No. FMCSA–2010–0096] erowe on DSK2VPTVN1PROD with RULES RIN 2137–AE65 Drivers of CMVs: Restricting the Use of Cellular Phones Federal Motor Carrier Safety Administration (FMCSA) and Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. AGENCIES: VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 Revisions to Section 2143 approved in the Louisiana Register June 20, 2009 (LR 35:1101). * * FMCSA and PHMSA are amending the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR) to restrict the use of hand-held mobile telephones by drivers of commercial motor vehicles (CMVs). This rulemaking will improve safety on the Nation’s highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving drivers of CMVs. The Agencies also amend their regulations to implement new driver disqualification sanctions for drivers of CMVs who fail to comply with this Federal restriction and new driver disqualification sanctions for commercial driver’s license (CDL) holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of handheld mobile telephones. Additionally, motor carriers are prohibited from requiring or allowing drivers of CMVs to use hand-held mobile telephones. SUMMARY: E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations DATES: This rule is effective January 3, 2012. For access to the docket to read background documents, including those referenced in this document, or to read comments received, go to http:// www.regulations.gov at any time and insert ‘‘FMCSA–2010–0096’’ or ‘‘PHMSA–2010–0227’’ in the ‘‘Keyword’’ box, and then click ‘‘Search.’’ You may also view the docket online by visiting the Docket Management Facility in Room W12– 140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., e.t. Monday through Friday, except Federal holidays. Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the U.S. Department of Transportation’s (DOT) complete Privacy Act Statement in the Federal Register published on January 17, 2008 (73 FR 3316), or you may visit http:// edocket.access.gpo.gov/2008/pdf/E8785.pdf. ADDRESSES: If you have questions about this rule, contact Mr. Brian Routhier, Transportation Specialist, Federal Motor Carrier Safety Administration, Vehicle and Roadside Operation Division, at (202) 366–4325 or FMCSA_MCPSV@dot.gov. or contact Ben Supko, Sr. Regulations Officer, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, at (202) 366–8553. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Table of Contents for Preamble erowe on DSK2VPTVN1PROD with RULES I. Abbreviations II. Background A. Rationale for the Rule B. Legal Authority III. Discussion of Comments A. FMCSA Comments B. PHMSA Comments IV. Discussion of the Rule V. Regulatory Analyses I. Abbreviations ABA American Bus Association Advocates Advocates for Highway and Auto Safety AMSA American Moving and Storage Association API American Petroleum Institute ATA American Trucking Associations, Inc. CDL Commercial Driver’s License CMV Commercial Motor Vehicle DOT United States Department of Transportation VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 EA Environmental Assessment EIS Environmental Impact Statement EOBR Electronic On-Board Recorder FCC Federal Communications Commission FMCSA Federal Motor Carrier Safety Administration FMCSRs Federal Motor Carrier Safety Regulations FONSI Finding of No Significant Impact FR Federal Register FRA Federal Railroad Administration MCSAC Motor Carrier Safety Advisory Committee MCSAP Motor Carrier Safety Assistance Program NAICS North American Industry Classification System NHTSA National Highway Traffic Safety Administration NPRM Notice of Proposed Rulemaking NSC National Safety Council NTSB National Transportation Safety Board OOIDA Owner-Operator Independent Drivers Association OMB Office of Management and Budget PAR Population Attributable Risk PHMSA Pipeline and Hazardous Materials Safety Administration PU Power Unit UMA United Motorcoach Association VTTI Virginia Tech Transportation Institute II. Background FMCSA—On December 21, 2010, FMCSA published a notice of proposed rulemaking (NPRM) in the Federal Register (75 FR 80014), proposing to restrict the use of hand-held mobile telephones by interstate CMV drivers. FMCSA received nearly 300 public comments to the NPRM. The Agency made changes to the proposed rule in response to these comments, which are described below in part IV, Discussion of the Rule. PHMSA—On April 29, 2011, PHMSA published a NPRM in the Federal Register (76 FR 23923), proposing to restrict the use of hand-held mobile telephones by drivers of CMVs containing a quantity of hazardous materials requiring placarding under part 172 of 49 CFR or any quantity of a select agent or toxin listed in 42 CFR part 73. PHMSA received six public comments, which are also described below in part IV, Discussion of the Rule. A. Rationale for the Rule Driver distraction can be defined as the voluntary or involuntary diversion of attention from primary driving tasks due to an object, event, or person. Researchers classify distraction into PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 75471 several categories: visual (taking one’s eyes off the road), manual (taking one’s hands off the wheel), cognitive (thinking about something other than the road/ driving), and auditory (listening to the radio or someone talking). Research shows that using a hand-held mobile telephone while driving may pose a higher safety risk than other activities (e.g., eating or adjusting an instrument) because it involves all four types of driver distraction. Both reaching for and dialing a hand-held mobile telephone are manual distractions and require visual distraction to complete the task; therefore, the driver may not be capable of safely operating the vehicle. Using a hand-held mobile telephone may reduce a driver’s situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk. To address the risk associated with these activities, the Agencies restrict CMV drivers’ use of hand-held mobile telephones, which includes ‘‘using at least one hand to hold a mobile telephone to conduct a voice communication.’’ As discussed below, while operating a CMV, the driver may only use a compliant mobile telephone, such as a hands free mobile phone, to conduct a voice communication. In an effort to understand and mitigate crashes associated with driver distraction, the U.S. Department of Transportation (DOT) conducted research concerning behavioral and vehicle safety countermeasures to driver distraction. Data from studies 1 indicate that both reaching for and dialing a mobile telephone increase the odds of a CMV driver’s involvement in a safetycritical event, such as a crash, near crash, or unintended lane departure.2 1 Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. (2009), Driver distraction in commercial vehicle operations, (Document No. FMCSA–RRR–09–042) Washington, DC: Federal Motor Carrier Safety Administration. The study is in the docket at #FMCSA–2010–0096–0016. Hickman, J., Hanowski, R. & Bocanegra, J. (2010), Distraction in commercial trucks and buses: assessing prevalence and risk in conjunction with crashes and near- crashes, (Document No. FMCSA– RRR–10–049) Washington, DC: Federal Motor Carrier Safety Administration. The study is in the docket at #FMCSA–2010–0096–0004. 2 In popular usage, mobile telephones are often referred to as ‘‘cell phones.’’ As explained later in the final rule, a variety of different technologies are licensed by the Federal Communications Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; thus, the rule here would apply E:\FR\FM\02DER1.SGM Continued 02DER1 75472 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES The odds of being involved in a safetycritical event are three times greater when the driver is reaching for an object than when the driver is not reaching for an object. The odds of being involved in a safety-critical event are six times greater while the driver is dialing a cell phone than when the driver is not dialing a cell phone. These increases in risk are primarily attributable to the driver’s eyes being off the forward roadway. Additionally, these activities have high population attributable risk (PAR) percentages. PAR percent is the percent of the drivers involved in a safety critical event that would not occur if performing the task while driving were eliminated. Tasks that are performed more frequently have a higher PAR percentage. The highest PAR percentage in the study was 7.6 percent—reaching for an object, including cell phones. Dialing a cell phone had a PAR of 2.5. Because of the data on distractions associated with the use of hand-held mobile telephones while driving 3(i.e. reaching for and dialing a mobile telephone), FMCSA and PHMSA believe it is in the best interest of public safety to restrict a CMV driver’s use of such devices. The National Transportation Safety Board (NTSB) determined that one probable cause of a November 2004 bus crash was the use of a hands-free cell phone. This crash was the impetus for an NTSB investigation (NTSB/HAR–06/ 04 PB2007–916201) and a subsequent recommendation to FMCSA that the Agency prohibit cell phone use by all passenger-carrying CMVs.4 FMCSA also received recommendations on cell phone use from its Motor Carrier Safety Advisory Committee (MCSAC). One of MCSAC’s recommendations for the National Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to ban a driver’s use of hand-held and hands-free mobile telephones while operating a CMV. to the range of technologies used to provide wireless telephone communications and the rule uses the broader term ‘‘mobile telephones.’’ However, some of the materials discussed in this preamble use the popular term ‘‘cell phone,’’ and the discussion continues that usage in such cases as appropriate. 3 As discussed under part II.B, the legal authority supporting the two regulatory programs of FMCSA and PHMSA differs. FMCSA’s authority to adopt the FMCSRs applies to CMV drivers who operate in interstate commerce. PHMSA’s authority to adopt the HMRs extends to CMV drivers who operate in intrastate commerce as well. 4 NTSB (2006). Motorcoach collision with the Alexandria Avenue Bridge overpass, George Washington Memorial Parkway, Alexandria, Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR–06/04; NTIS report number PB2007–916201). Retrieved May 16, 2011, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 It is not clear, however, if simply talking on a mobile telephone presents a significant risk while driving. For example, Olson, et al. (2009) detailed the risks of reaching for and dialing a phone while driving and found that ‘‘talking or listening to a hands-free phone’’ and ‘‘talking or listening to a hand-held phone’’ were relatively lowrisk activities that involved only brief periods of eyes off the forward roadway. FMCSA and PHMSA determine that it is the action of taking one’s eyes off the forward roadway to reach for and dial a hand-held mobile telephone 5 (two high PAR activities) that has the greatest risk. The Agencies address those risky behaviors by restricting holding mobile telephones while driving a CMV. While no State has completely banned mobile telephone use, some States have gone further than this rule for certain categories of drivers. For example, 19 States and the District of Columbia prohibit the use of all mobile telephones while driving a school bus. Additionally, nine States and the District of Columbia have traffic laws prohibiting all motor vehicle drivers from using a hand-held mobile telephone while driving. Transit bus and motorcoach drivers are the focus of stricter mobile telephone rules in some States and local jurisdictions.6 The restriction of hand-held mobile telephone use by all CMV drivers is based on available data and in line with existing regulations that hold CMV drivers to higher standards.7 Distracted Driving Summit The information and feedback DOT received during its first Distracted Driving Summit, held September 30– October 1, 2009, in Washington, DC, highlighted the need for action and demonstrated widespread support for a ban against texting and mobile telephone use while driving. Summit participants, who included industry representatives, safety experts, elected officials, and law enforcement, gathered to address the safety risk posed by this growing problem across all modes of surface transportation. U.S. 5 The concept of ‘‘holding’’ is included in our definition of ‘‘use a hand-held mobile telephone.’’ 6 Insurance Institute for Highway Safety list of cellphone laws. Retrieved June 20, 2011, from http://www.iihs.org/laws/cellphonelaws.aspx. 7 See 49 CFR 392.2, Applicable operating rules, which states that every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Motor Carrier Safety Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Motor Carrier Safety Administration regulation must be complied with. PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 Transportation Secretary Ray LaHood stated: ‘‘Keeping Americans safe is without question the Federal government’s highest priority.’’ The Secretary pledged to work with Congress to ensure that the issue of distracted driving would be appropriately addressed.8 At the conclusion of the Summit, the Secretary announced a series of concrete actions that the Obama Administration and DOT would be taking to address distracted driving. B. Legal Authority FMCSA The authority for this rule derives from the Motor Carrier Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the Commercial Motor Vehicle Safety Act of 1986 (1986 Act), 49 U.S.C. chapter 313. The 1984 Act (Pub. L. 98– 554, Title II, 98 Stat. 2832, Oct. 30, 1984) provides authority to regulate the safety of operations of CMV drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation (Secretary) to ‘‘prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.’’ Although this authority is very broad, the 1984 Act also includes specific requirements in 49 U.S.C. 31136(a): At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators. This rule is based primarily on 49 U.S.C. 31136(a)(1), which requires regulations that ensure that CMVs are operated safely, and secondarily on section 31136(a)(2), to the extent that drivers’ use of hand-held mobile telephones impacts their ability to operate CMVs safely. It does not address the physical condition of drivers (49 U.S.C. 31136(a)(3)), nor does it impact any physical effects caused by operating CMVs (49 U.S.C. 31136(a)(4)). The relevant provisions of the FMCSRs (49 CFR subtitle B, chapter III, subchapter B) apply to CMV drivers and employers operating CMVs included in 8 DOT (Oct. 1, 2009). U.S. Transportation Secretary Ray LaHood Announces AdministrationWide Effort to Combat Distracted Driving (DOT 156–09). Retrieved May 16, 2011, from: http:// www.dot.gov/affairs/2009/dot15609.htm. E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES the statutory authority of the 1984 Act. The 1984 Act defines a CMV as a selfpropelled or towed vehicle used on the highways to transport persons or property in interstate commerce; and that either: (1) Has a gross vehicle weight/gross vehicle weight rating of 10,001 pounds or greater; (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) is designed or used to transport more than 15 passengers, not for compensation; or (4) is transporting any quantity of hazardous materials requiring placards to be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating CMVs are subject to the FMCSRs, except those who are employed by Federal, State, or local governments (49 U.S.C. 31132(2)). In addition to the statutory exemption for government employees, there are several regulatory exemptions in the FMCSRs that are authorized under the 1984 Act, including, among others, one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver) not for direct compensation (49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only applies to interstate transportation of school children and/or school personnel between home and school. This particular exemption is not based on any statutory provisions, but is instead a discretionary rule promulgated by the Agency. Therefore, FMCSA has authority to modify the exemption. Modification of the school bus operations exemption requires the Agency to find that such action ‘‘is necessary for public safety, considering all laws of the United States and States applicable to school buses’’ (former 49 U.S.C. 31136(e)(1)).9 FMCSA also has authority to modify the non-statutory exemption for small, passenger-carrying vehicles not for direct compensation, but is not required to comply with 9 Former section 31136(e)(1) was amended by section 4007(c) of the Transportation Equity Act for the 21st Century, Pub. L. 105–178, 112 Stat. 107, 403 (June 9, 1998) (TEA–21). However, TEA–21 also provides that the amendments made by section 4007(c) ‘‘shall not apply to or otherwise affect a waiver, exemption, or pilot program in effect on the day before the date of enactment of [TEA–21] under * * * section 31136(e) of title 49, United States Code.’’ (Section 4007(d), TEA–21, 112 Stat. 404 (set out as a note under 49 U.S.C. 31136)). The exemption for school bus operations in 49 CFR 390.3(f)(1) became effective on November 15, 1988, and was adopted pursuant to section 206(f) of the 1984 Act, later codified as section 31136(e) (Federal Motor Carrier Safety Regulations; General, 53 FR 18042–18043, 18053 (May 19, 1988) and section 1(e), Public Law 103–272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by FMCSA affecting the school bus operations exemption would require the Agency to comply with former section 31136(e)(1). VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 former 49 U.S.C. 31136(e) in modifying that exemption.10 FMCSA applies restrictions on hand-held mobile telephone use to both school bus operations by private operators in interstate commerce and small passenger-carrying vehicles not for direct compensation, although they will continue to be exempt from the rest of the FMCSRs. Other than transportation covered by statutory exemptions, FMCSA has authority to restrict the use of mobile telephones by drivers operating CMVs. Any violation of this restriction may result in a civil penalty imposed on drivers in an amount up to $2,750; a civil penalty may be imposed on employers, who fail to require their drivers to comply with FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of a CMV driver for violations of the Act and its regulations is also within the scope of the Agency’s authority under the 1984 Act. Such disqualifications are specified by regulation for other violations (49 CFR 391.15), and were recently adopted by the Agency in its final rule prohibiting texting by CMV drivers while operating in interstate commerce (75 FR 59118, Sept. 27, 2010; 49 CFR 392.80). In summary, both a restriction on the use of hand-held mobile telephones and associated sanctions, including civil penalties and disqualifications, are authorized by statute and regulation for operators of CMVs, as defined above, in interstate commerce, with limited exceptions. But before prescribing any regulations under the 1984 Act, FMCSA must consider their costs and benefits (49 U.S.C. 31136(c)(2)(A)). See Part V, Regulatory Analysis. The 1986 Act (Title XII of Pub. L. 99– 570, 100 Stat. 3207–170, Oct. 27, 1986), which authorized creation of the CDL program, is the primary basis for licensing programs for certain large CMVs. There are several key distinctions between the authority conferred under the 1984 Act and that under the 1986 Act. First, the CMV for which a CDL is required is defined under the 1986 Act, in part, as a motor vehicle operating ‘‘in commerce,’’ a term separately defined to cover broadly both interstate commerce and operations that ‘‘affect’’ interstate commerce (49 U.S.C. 31301(2) and (4)). Also under the 1986 Act, a CMV means 10 The exemption in 49 CFR 390.3(f)(6) was not adopted until 2003, after the enactment of TEA–21, in a final rule titled, ‘‘Safety Requirements for Operators of Small Passenger-Carrying Commercial Motor Vehicles Used In Interstate Commerce’’ (68 FR 47860, Aug. 12, 2003). PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 75473 a motor vehicle used in commerce to transport passengers or property that: (1) Has a gross vehicle weight/gross vehicle weight rating of 26,001 pounds or greater; (2) is designed to transport 16 or more passengers including the driver; or (3) is used to transport certain quantities of ‘‘hazardous materials,’’ as defined in 49 CFR 383.5 (49 U.S.C. 31301(4)). In addition, a provision in the FMCSRs implementing the 1986 Act recognizes that all school bus drivers (whether government employees or not) and other government employees operating vehicles requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or designed to transport 16 or more passengers) are subject to the CDL standards set forth in 49 CFR 383.3(b). There are several statutory and regulatory exceptions from the CDL requirements, which include the following individuals: military service members who operate a CMV for military purposes (a mandatory exemption for the States to follow) (49 CFR 383.3(c)); certain farmers; firefighters; CMV drivers employed by a unit of local government for the purpose of snow/ice removal; and persons operating a CMV for emergency response activities (all of which are permissive exemptions for the States to implement at their discretion) (49 CFR 383.3(d)). States may also issue certain restricted CDLs to other categories of drivers under 49 CFR 383.3(e)–(g). Drivers with restricted CDLs based on State programs may still be covered by a disqualification under the 1986 Act arising from the use of hand-held mobile telephones while operating CMVs. The 1986 Act does not expressly authorize the Agency to adopt regulations governing the safety of CMVs operated by drivers required to obtain a CDL. Most of these drivers (those involved in interstate trade, traffic, or transportation) are subject to safety regulations under the 1984 Act, as described above. The 1986 Act, however, does authorize disqualification of CDL drivers by the Secretary. It contains specific authority to disqualify CDL drivers for various types of offenses, whether those offenses occur in interstate or intrastate commerce. This authority exists even if drivers are operating a CMV illegally because they did not obtain a CDL. In general, the 1986 Act explicitly identifies several ‘‘serious traffic violations’’ as grounds for disqualification (49 U.S.C. 31301(12) and 31310). In addition to the specifically enumerated ‘‘serious traffic violations,’’ the 1986 Act provides related authority that allows FMCSA to E:\FR\FM\02DER1.SGM 02DER1 75474 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES designate additional serious traffic violations by rulemaking if the underlying offense is based on the CDL driver committing a violation of a ‘‘State or local law on motor vehicle traffic control’’ (49 U.S.C. 31301(12)(G)). The FMCSRs state, however, that unless and until a CDL driver is convicted of the requisite number of specified offenses within a certain time frame (described below), the required disqualification may not be applied (49 CFR 383.5 (defining ‘‘conviction’’ and ‘‘serious traffic violation’’) and 383.51(c)). Under the statute, a driver who commits two serious traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 60 days (49 U.S.C. 31310(e)(1)). A driver who commits three or more serious traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile telephones results in distracted driving and increases the risk of CMV crashes, fatalities, and injuries, FMCSA is now requiring that violations by a CDL driver of a State or local law or ordinance on motor vehicle traffic control that restricts the use of such mobile telephones while driving CMVs should result in a disqualification under this provision. FMCSA is authorized to carry out these statutory provisions by delegation from the Secretary as provided in 49 CFR 1.73(e) and (g). PHMSA PHMSA’s Office of Hazardous Materials Safety is the Federal safety authority for the transportation of hazardous materials by air, rail, highway, and water. Under the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the Secretary of Transportation is charged with protecting the nation against the risks to life, property, and the environment that are inherent in the commercial transportation of hazardous materials. The Hazardous Materials Regulations (HMR; 49 CFR parts 171– 180) are promulgated under the mandate in Section 5103(b) of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) that the Secretary of Transportation ‘‘prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.’’ Section 5103(b)(1)(B) provides that the HMR ‘‘shall govern safety aspects, including security, of the transportation of hazardous material the VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 Secretary considers appropriate.’’ As such, PHMSA strives to reduce the risks inherent to the transportation of hazardous materials in both intrastate and interstate commerce. This final rule is being issued under the authority in 49 CFR part 106. III. Discussion of Comments FMCSA received approximately 300 comments in response to the NPRM (75 FR 80014, Dec. 21, 2010). PHMSA received 6 comments in response to its NPRM (76 FR 23923, April 29, 2011). The commenters included associations representing trucking companies, motorcoach companies, school bus operations, public transportation, highway safety, utility providers, waste haulers, concrete manufacturers, and food suppliers. In addition, the agencies received comments from the legal and law enforcement communities, as well as representatives of State governments and driver unions. Commenters from the general public included motorists concerned about their safety when driving near CMV drivers who are using mobile telephones. Overall, most commenters supported the proposal to restrict hand-held mobile telephone use because of the potential safety benefits for all vehicle and pedestrian traffic sharing the highway with CMVs. A few commenters stated that the proposal did not go far enough and that all mobile telephone use by CMV drivers should be prohibited. A few commenters opposed any restriction on the use of mobile phones. Below we summarize the comments submitted to FMCSA’s NPRM at Docket FMSCA–2010–0096, followed by a summary of the comments submitted to PHMSA’s NPRM at Docket PHMSA–2010–0227. A. FMCSA Comments Hand-Held Restriction Some commenters believed that restricting hand-held mobile telephone use by drivers operating CMVs in interstate commerce would impede business and require many more stops for drivers. FMCSA Response. Because drivers have other options available that do not require pulling over and stopping, FMCSA disagrees that this rule would impede business. Stops can be avoided by using technological solutions such as a hands-free mobile telephone with a speaker phone function or a wired or wireless earphone. Most mobile telephones have a speaker phone function and one-touch dialing and thus would be compliant with this rule. Additionally, the Agency estimated the PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 minimum cost of upgrading from a noncompliant mobile telephone to a compliant one to be as low as $29.99.11 Therefore, abiding by the final rule will not create a burden on, or hardship for, CMV drivers. Complete Mobile Telephone Ban A few commenters, including First Group America 12 and the Advocates for Highway and Auto Safety (Advocates), thought the Agency should ban both hand-held and hands-free mobile telephone use. FMCSA Response. The Agency does not believe sufficient data exist to justify a ban of both hand-held and hands-free use of mobile telephones by drivers operating CMVs in interstate commerce. Based on available studies, FMCSA proposed restricting only hand-held mobile telephone use by CMV drivers. While some driving simulator-based studies found conversation to be risky, the Olson, et al. (2009) and Hickman, et al. (2010) studies found that ‘‘talking or listening to a hands-free phone’’ and ‘‘talking or listening to a hand-held phone’’ were relatively low-risk activities and had only brief periods when the drivers’ eyes were off the forward roadway. It is not clear from available studies if simply talking on a mobile telephone while driving presents a significant risk. The use of a cell phone, however, involves a variety of sub-tasks, some increasing and some decreasing the odds of involvement in a safety-critical event. The Hickman, et al. (2010) study showed that reaching for a cell phone while driving increased these odds by 3.7 times. Dialing a cell phone while driving increased the odds by 3.5 times. Reaching for a headset/earpiece while driving increased the odds by 3.4 times. Talking or listening on a handsfree cell phone while driving decreased the odds by .7 times (i.e., protective effect). Talking/listening on a hand-held cell phone (odds ratios = .9) had a nonsignificant odds ratio (i.e., no increase or decrease in risk). Although talking on the cell phone did not show an increased risk, a driver must take several risk-increasing steps, such as reaching for and dialing the cell phone, in order to use the electronic device for conversation. Based on these studies, FMCSA determined that it is the action of taking one’s eyes off the 11 Upgrading is defined as the purchase of a mobile telephone that has voice dialing and speaker phone capabilities. The average cost of the least costly compliant phone is $29.99 (with a 2-year contract). See the Regulatory Evaluation accompanying this final rule for a full explanation of this cost. 12 A North American surface transportation provider that includes school bus and transit services, as well as Greyhound Lines, Inc. E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES forward roadway to reach for and dial the mobile telephone that is the highly risky activity. Therefore, because the reaching and dialing tasks are necessary to use a hand-held mobile telephone, the Agency will only restrict hand-held mobile telephone use by CMV drivers while operating in interstate commerce in this final rule. Reaching for and dialing a mobile telephone are both visual and manual distractions and reduce a driver’s situational awareness; adversely impact decision making or driving performance; and result in an increased risk of a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action.13 To address this risk, the Agency also restricts holding mobile telephones while driving a CMV. FMCSA specifically asked commenters whether some CMV drivers (for example, drivers of passengercarrying vehicles or those carrying hazardous materials) should be more restricted in their mobile telephone use than other CMV drivers. The Agency received a few responses on this issue and those commenters believed FMCSA should treat all CMV drivers equally. Two-Way Radios and Push-to-Talk Many commenters were concerned because the proposed rule prohibited the push-to-talk function of a mobile telephone. Some drivers use this function in lieu of a two-way radio. Commenters argued that the push-totalk function is no different than that of a two-way or CB radio, neither of which were restricted by the proposed rule. One commenter stated that some school bus drivers need to use the push-to-talk function in lieu of actual two-way radio systems because it is their only means of communication. On the other hand, the National School Transportation Association commented that it supports allowing two-way radios, instead of the push-to-talk function, as two-way radios are commonly used in school bus operations. Some specialized haulers commented that the Agency should provide a pushto-talk exception for specialized transports that use escorts in transporting certain loads (such as high weight or oversized items, often at low speed) because frequent communication is necessary between trucks and escort vehicles. The Maryland Motor Truck Association pointed out that Maryland passed a law on mobile telephone use with a push-to-talk exception. FMCSA Response. In the NPRM, the Agency defined a mobile telephone as 13 For further discussion, see the Research section of the NPRM (75 FR 80020). VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 ‘‘a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission (FCC), 47 CFR 20.3.’’ FMCSA used the FCC’s definition for ‘‘mobile telephone’’ in order to ensure consistency between the terms used in the FCC and FMCSA rules and to address emerging technologies. Because the push-to talk features use commercial mobile radio services to transmit and receive voice communications, the device is a mobile telephone; and it also requires the driver or user to hold it. Therefore, its use while driving a CMV is the same as that of a hand-held mobile telephone and is prohibited. The push-to-talk feature of a mobile telephone can be replaced with the use of a compliant mobile telephone, twoway radios, or walkie-talkies for the short periods of time when communication is critical for utility providers, school bus operations, or specialty haulers. The use of CB and two-way radios and other electronic devices by CMV drivers for other functions is outside the scope of consideration in this rulemaking. Dialing/Button Touches A number of commenters objected to the way the Agency used the term ‘‘dial,’’ and offered alternative suggestions. Werner Enterprises stated that the word ‘‘dial’’ used in the definition was archaic, as it could include voice or speed dialing as it is currently written. Some commenters said the Agency should differentiate between dialing and a single button push to initiate or answer a call, either on the phone or the earpiece, or to enable voice-activated dialing. ATA commented that dialing should be defined as entering a 7 to 10 digit phone number because the rule should allow the driver to use 1 or 2 button pushes to initiate a conversation. Dart Transit stated that consideration should be given to allowing limited key strokes (fewer than four over a predetermined time frame) for technological interaction. The Maryland Motor Truck Association said that the current Maryland Motor Vehicle Law allows a driver to ‘‘initiate or terminate a wireless telephone call or to turn on or turn off the hand-held telephone.’’ FMCSA Response. In the NPRM, the Agency used the word dial in a general sense to indicate the placement of a call. Although the word dial originated with rotary dial phones, FMCSA acknowledges there are very few phones that still actually have such a feature. Such devices generally do not work on PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 75475 today’s telecommunications network because they do not generate a digital tone for each number. The term ‘‘dial’’ is commonly used to mean ‘‘make a telephone call,’’ whether the task is accomplished by entering a 7 to 11 digit phone number or by voice activation or speed dialing. The Agency does not believe it is necessary to introduce another term or create a new term in place of the word ‘‘dial.’’ Thus, FMCSA will not use alternative terminology references for this definition. If the Agency defined dial in a manner that permitted 3, 4, or even 10 touches or button presses, enforcement would be difficult. The amount of time the driver has his or her eyes off of the forward roadway is the fundamental issue, and the time required to identify and press any given number of buttons would vary from driver to driver. FMCSA, however, has added language to the regulatory text that allows the driver only minimal contact with the mobile telephone in order to conduct voice communication. A driver can initiate, answer, or terminate a call by touching a single button on a mobile telephone or on a headset. This action does not require the driver to take his or her eyes off of the forward roadway for an extended period—comparable to using vehicle controls or instrument panel functions, such as the radio or climate control system. Using a Hand-Held Mobile Telephone/ Clarifying Reaching Many commenters requested that the Agency clarify the term ‘‘reaching.’’ The Owner- Operator Independent Drivers Association (OOIDA) noted that truck drivers safely reach for and press buttons or turn knobs to operate various equipment, including windshield wipers, temperature controls, radios, and CD players. The Snack Food Association, Southern Company, and the State of New York Department of Motor Vehicles commented that prohibiting reaching was ‘‘too proscriptive’’ or broad. The Alliance of Automobile Manufacturers said that this ‘‘overly prescriptive’’ regulatory wording would inhibit development of innovative technologies for the commercial vehicle fleet. One commenter suggested that drivers should be fined for holding the phone to their ear in lieu of establishing the prohibition based on the reaching task because it would be difficult to differentiate between reaching for other items in the cab and reaching for a mobile telephone. The State of New York Department of Motor Vehicles noted that the New York State Vehicle Traffic Law states that ‘‘using (a phone) E:\FR\FM\02DER1.SGM 02DER1 erowe on DSK2VPTVN1PROD with RULES 75476 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.’’ The National Rural Electric Cooperative Association suggested allowing negligible movements to activate a hands-free mobile telephone. ATA recommended educating drivers to place hands-free devices within close proximity. A few commenters asked, why, if the radio, CB, and phone are all located within an easy arm’s reach, the Agency is proposing to restrict only the use of hand-held mobile telephones. FMCSA Response. FMCSA acknowledges commenters’ concerns and revises the regulatory text to allow drivers to reach for the compliant mobile telephone (i.e., hands-free) provided the device is within the driver’s reach while he or she is in the normal seated position, with the seat belt fastened. This concept is a familiar one and found elsewhere in the FMCSRs. See, for example, 49 CFR 393.51 (certain CMVs must have an air pressure gauge ‘‘visible to a person seated in the normal driving position.’’). In addition, the Agency modeled its language on existing National Highway Traffic Safety Administration (NHTSA) rules. The NHTSA rules regarding the location of controls (49 CFR 571.101, S5.1.1) require certain controls, such as the hazard warning signal, windshield wiper, or climate control system, to be located so that they are operable by the driver when, ‘‘[t]he driver is restrained by the seat belts installed in accordance with 49 CFR 571.208 (Standard No. 208; Occupant crash protection) and adjusted in accordance with the vehicle manufacturers’ instructions’’ (49 CFR 571.101, S5.6.2). These changes are reflected in the amended definition of ‘‘use a hand-held mobile telephone’’ in § 390.5. If a compliant mobile telephone is close to the driver and operable while the driver is restrained by properly installed and adjusted seat belts, then the driver would not be considered to be reaching. Reaching for any mobile telephone on the passenger seat, under the driver’s seat, or into the sleeper berth are not acceptable actions. To avoid committing a violation of this rule, the driver could use either a hands-free earpiece or the speaker function of a mobile telephone that is located close to the driver. Therefore, in order to comply with this rule, a driver must have his or her compliant mobile telephone located where the driver is able to initiate, answer, or terminate a call by touching a single button, for example, on the compliant mobile telephone or on a headset, when the driver is in the seated driving position and properly restrained by a seat belt. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 While several commenters compared the use of hand-held mobile telephones to other electronic devices, arguing either for more comprehensive restrictions or against the regulation of hand-held mobile telephones, the use of other electronic devices by CMV drivers is outside the scope of this rulemaking. Mounted or Stationary Mobile Telephones Some drivers noted that they keep their phones in a bracket that allows them to answer and initiate calls without holding the mobile telephone. Some commenters questioned whether such mounted phones are acceptable. FMCSA Response. Although the Agency did not address the option of mounting the mobile telephone in the NPRM, a compliant mobile telephone mounted close to the driver is an acceptable option, but it is not, however, required in order to be in compliance with the final rule. If a compliant mobile telephone is operated in accordance with this rule, mounted phones are no more distracting than operating the radio, climate control system, or other dash-mounted accessory in the vehicle. Use of the Mobile Telephone While Idling Some commenters, including the National Ready Mix Concrete Association, asked whether phone use would be allowed when the vehicle was parked, but with the engine running. FMCSA Response. FMCSA removed the language ‘‘with or without the motor running.’’ Now the Agency states that ‘‘driving’’ means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. The Agency also revised the regulatory text to clarify that the restriction against using a hand-held mobile telephone applies when a CMV is operated ‘‘on a highway.’’ See 49 CFR 390.5 (definition of highway). The Agency believes this clarification addresses emerging technologies such as hybrid vehicles, which are operated at times without the motor running. Therefore, as long the ‘‘driver has moved the vehicle to the side of, or off, a highway and has halted the vehicle in a location where it can safely remain stationary,’’ use of the mobile telephone is allowed. Our new definition for ‘‘driving’’ is addressed in PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 § 383.51 and explained in Part IV, Discussion of the Rule. Uses of the Mobile Telephone for Other Than Voice Communication Some commenters said they use their mobile telephones to enter the vehicle’s odometer reading in the phone when crossing State lines and press the send button to create a time stamp. The American Moving and Storage Association (AMSA) and The Alliance of Automobile Manufacturers were concerned that the synchronizing of mobile telephones with other electronic devices would be affected by this rulemaking. Specifically, Alliance said that the definition of ‘‘texting’’ in § 383.5 should not be revised by removing the dialing exception in paragraph (2)(i). One commenter asked if text-to-voice and voice-to-text functions could be used under this rule. FMCSA Response. Entering the vehicle odometer reading into a mobile telephone qualifies as texting (49 CFR 390.5) and, therefore, is already prohibited while driving (75 FR 59118, Sept. 27, 2010). Similarly, synchronizing EOBRs or other technologies with mobile telephones would require multiple steps that would result in a driver’s eyes off forward roadway. This action should be accomplished when the vehicle is not moving, while safely parked off of the highway. If voice-to-text and text-tovoice functions can be initiated with a single button touch, such as is used to activate voice dialing, they are allowed. In the definition of ‘‘texting’’ in §§ 383.5 and 390.5, the Agency included the exception for dialing in the texting rule to allow mobile telephone use until the time the Agency decided to address it through separate rulemaking concerning mobile telephones. Removing the dialing option in this rule limits the operator’s ability to engage in unsafe, eyes-off-forward-roadway behavior. The pairing of mobile telephones with in-vehicle technologies may be a violation of other restrictions or regulations. Regardless, the Agency believes a responsible driver would pair or link a mobile telephone to other technologies when the vehicle is stationary and not while he or she is operating a CMV on our Nation’s highways. Other Distractions Many commenters, including OOIDA, questioned why other risky activities that may cause driver distraction were not addressed in this rule. Commenters asked if there would be future prohibitions on activities like reading, E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES operating radios and CBs, or eating. Some asked that global positioning systems (GPS) and dispatching devices be included in the prohibition. The National School Transportation Association cited its recommended policy that ‘‘Drivers may not use a cell phone or other personal portable device while operating a school bus or any other vehicle transporting students * * *.’’ Advocates believed that the Agency should extend the proposal to include other types of electronic devices and technologies that cause driver distraction; otherwise Advocates argued that the Agency’s action is arbitrary and capricious. FMCSA Response. Based on the data from the Olson, et al. (2009) study, the Agency is giving priority to addressing certain risky tasks. The Agency prohibited texting because it is associated with relatively high odds ratios and eyes-off-forward-roadway time. Similarly, both reaching for an object in the vehicle (such as a mobile telephone) and dialing a mobile telephone have significantly high odds ratios. Odds ratios are the odds of being involved in a safety critical event when performing a task compared to not performing that task. Although the OR for ‘‘reach for an object in vehicle,’’ is lower than the OR for ‘‘dialing,’’ the PAR for ‘‘reach for an object in vehicle’’ is the highest PAR in the study. The restriction of hand-held mobile telephone use, which the Agency is defining to include reaching for and dialing tasks, is a logical next step for the Agency in its efforts to prevent distracted driving because mobile telephones are increasingly popular. To address these risky activities, the Agency restricts the use of hand-held mobile telephones. FMCSA is considering an advance notice of proposed rulemaking to seek public comment on the extent to which regulatory action is needed to address other in-cab electronic devices that may result in distracted driving. Constitutional Concerns A few commenters raised constitutional concerns, namely whether the rule runs afoul of the Fourth or Fourteenth Amendment of the United States Constitution. Specifically, some commenters, including OOIDA, argued that FMCSA violated the Fourth Amendment because it failed to include an enforcement plan and procedural guidelines for its proposed cell phone rule. A professional driver argued that a regulation that restricts the use of handheld cell phone devices by CMV drivers in interstate commerce violates the Equal Protection Clause of the VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 Fourteenth Amendment because CMV drivers involved in intrastate commerce are not covered by the same proposal. In the alternative, the commenter requested that the U.S. Department of State engage in treaty negotiations with foreign nations to impose similar restrictions and penalties on them when operating CMVs in the United States. FMCSA Response. The Fourth Amendment concerns raised by OOIDA are without merit. The regulation of the use of a mobile phone while operating a CMV does not constitute a ‘‘search’’ or ‘‘seizure’’ to which the Fourth Amendment applies. A driver could not successfully claim that observance of this conduct would violate a reasonable expectation of privacy. Cf United States v. Knotts, 460 U.S. 276 (1983). Nothing in the rule authorizes enforcement officers to require a driver to make a mobile telephone available so that the officer can review call history for purposes of enforcing this rule. It is the Agency’s view that the rule may be enforced without raising Fourth Amendment concerns. Assuming that a Fourth Amendment argument might be raised in connection with the enforcement of the rule, given the government’s interest in safety on public highways and the closely regulated nature of the commercial motor vehicle industry, it is FMCSA’s view that a Fourth Amendment challenge is unlikely to be successful. Cf. New York v. Burger, 482 U.S. 691 (1987). In any event, the acquisition of evidence in a particular case will be governed by the principles established in judicial precedents interpreting and applying the Fourth Amendment and relevant statutory provisions, such as the Electronic Communications Privacy Act of 1986, Pub. L. 99–508, 100 Stat. 1848 (1986). The commenter’s Fourteenth Amendment argument is misplaced for several reasons. First, a classification distinguishing between interstate and intrastate commerce would be evaluated under a rational relationship test—a minimal level of scrutiny employed in equal protection analysis. Second, as noted above, both the restriction on the use of hand-held mobile telephones and associated sanctions, including civil penalties and disqualifications, on operators of CMVs in interstate commerce are authorized by statute. While the commenter argued that FMCSA is ‘‘segregating and punishing’’ a certain group of people, Congress exercised its commerce clause powers under the Constitution in authorizing the Agency to regulate the safety of persons operating CMVs in interstate and foreign transportation. PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 75477 Although Congress could have gone further and authorized FMCSA to regulate the safety of transportation that ‘‘affected’’ interstate commerce (generally all intrastate transportation), it has made a rational decision not to give FMCSA that authority, though the Agency’s MCSAP funding provides the FMCSA leverage to bring the States into conformity with FMCSA safety regulations. Clearly, Congress had a rational basis in the manner it prescribed the Agency’s regulatory authority. Thus, FMCSA believes the Fourteenth Amendment argument is without merit. In response to the commenter’s alternative treaty negotiations argument, the Agency notes that Congress has given FMCSA authority to regulate the safety of foreign nationals operating CMVs within the territorial limits of the United States. See 49 U.S.C. 31132. The definition of ‘‘interstate commerce’’ in that statute covers transportation in the United States that is between a place in a State and ‘‘a place outside the United States’’ (49 U.S.C. 31132(4)). Accordingly, the rule would apply to CMV drivers from other countries who drive CMVs in the United States. Fines/Driver Disqualification Some commenters believed the civil penalties were too high. The United Transportation Union said there should be an appeals process for disqualifications. FMCSA Response. The Agency rejects the view that the maximum penalties are too harsh. The applicable civil penalties for violations of this rule are provided by Congress and are consistent with current maximum penalties that can be assessed against an employer and driver for the violation of similar safety regulations. See 49 U.S.C. 521(b)(2); 49 CFR 386, Appendix B, paragraphs (a)(3) and (4). The actual penalty that might result in a proceeding under 49 CFR part 386 would take into account mitigating factors enumerated in 49 CFR 386.81. Driver and motor carrier fines ($2,750 and $11,000, respectively) in the rule are the recommended maximum that the Agency can assess on any violator. States, however, may choose to set the amount of a fine at or below those levels. Additionally, as noted above, civil penalties imposed under FMCSA regulations may be adjusted based on the circumstances of the violation. In response to the United Transportation Union, FMCSA currently has an appeals process in place for disqualifications. If a driver obtains a ‘‘letter of disqualification’’ for violating the hand-held mobile telephone E:\FR\FM\02DER1.SGM 02DER1 75478 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES restriction, he or she can either accept it or petition for review within 60 days after service of such action pursuant to 49 CFR 386.13. The petition must be submitted to FMCSA and must contain the following: (1) Identification of what action the petitioner wants overturned; (2) copies of all evidence upon which petitioner relies, in the form set out in § 386.49; (3) all legal and other arguments that the petitioner wishes to make in support of his/her position; (4) a request for oral hearing, if one is desired, which must set forth material factual issues believed to be in dispute; (5) certification that the reply has been filed in accordance with § 386.31; and (6) any other pertinent material. Employer Liability Some commenters stated that employers should not be held responsible for a driver’s use of a handheld mobile telephone. Others suggested that employers should be prohibited from calling drivers during work hours. Some commenters said that employers would be fined, instead of drivers, to increase revenue from a violation. The Snack Food Association commented that employer sanctions are inappropriate where an employer has a policy banning hand-held phone use already in place. ATA said that a motor carrier should not be deemed to have allowed hand-held phone use if they have taken good faith steps to ensure compliance. ATA, AMSA, and other commenters suggested the Agency add the word ‘‘knowingly’’ to § 392.82 so that it would read as follows: ‘‘No motor carrier shall knowingly allow or require its drivers to use a hand-held mobile telephone while driving a CMV.’’ FMCSA Response. FMCSA holds motor carriers accountable for the actions of their employees or drivers, especially when the employer allows or requires the prohibited action. In other words, the employer will generally be held accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer’s behalf when the violation occurred. FMCSA acknowledges the concern raised by industry representatives addressing employer liability for a driver’s improper use of a hand-held mobile telephone. We recognize that there will be cases when a CMV driver uses a mobile telephone in violation of the employer’s policy. The Agency, however, disagrees with the suggestion by some commenters that the word ‘‘knowingly’’ be added to the restriction in § 392.82(a)(2) that states ‘‘no motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.’’ As noted above, a motor carrier should put in place or have company policies or practices that make it clear that a carrier does not allow or require hand-held mobile phone use while driving. A motor carrier is responsible for the actions of its drivers. FMCSA reiterates that motor carriers and employers that allow or require their drivers to use a hand-held mobile telephone will be subject to civil penalties of up to $11,000, as already provided in 49 U.S.C. 521(b)(2)(A), 49 CFR 386.81, and Appendix B to 49 CFR part 386, paragraph (a)(3). A motor carrier must require drivers to observe a duty or prohibition imposed under the FMCSRs. See 49 CFR 390.11. Enforcement Several commenters said that enforcement will be difficult and highlighted the lack of enforcement of existing distracted driving laws. Several commenters worried about the mechanics of enforcement. Commenters’ concerns related to challenges in law enforcement officers’ might have in observing a CMV driver holding the mobile telephone, unless the driver were holding it to his or her ear. AMSA believed that the officer should be required to actually see the driver holding and/or dialing the phone before taking enforcement action. FMCSA Response. FMCSA does not believe it is necessary to prescribe enforcement procedures and methodology in the rulemaking. The Agency and its State partners, through CVSA and its Training Committee, will develop the procedures and methods to ensure uniform application of the rule. Questions about specific enforcement procedures are not a basis for not taking action to restrict CMV drivers from using hand-held mobile telephones while operating in interstate commerce. The Agency notes, however, that enforcement programs can be successful. Since our texting rule was implemented, FMCSA has had over 300 violations at roadside. Additionally, NHTSA, as part of its continuing effort to combat distracted driving, sponsored a pilot program in Hartford, Connecticut, and Syracuse, New York, which tested whether increased law enforcement efforts lead distracted drivers to put down their cell phones and focus on the road. During a year long pilot program in Hartford, police cited 9,500 drivers for talking on mobile telephones or texting while driving. Similar results were noted in Syracuse. Enforcement of this rule will involve a period of familiarization with the requirements for both Federal and VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 State enforcement agencies. Therefore, FMCSA believes enforcement officials will be prepared to enforce the rule and be mindful of the factors needed to bring forward a case that would withstand legal challenges. Research Methodology Based on the available research, the United Motorcoach Association (UMA) felt that the Agency underestimated cognitive distraction and urged FMCSA to continue to study this issue. Advocates, NTSB, and a few other commenters suggested that research supports extending the Agency’s prohibition to the hands-free operation of mobile telephones, as well as other electronic devices and technologies capable of causing distraction while driving. Advocates commented that the data in the Hickman, et al. (2010) study came from more safety conscious fleets during a period of elevated focus on the issue of distracted driving. They, therefore, felt that this data should be viewed cautiously since it likely represents a ‘‘best case scenario’’ population for study of distracted driving and may not accurately reflect real-world experience among the majority of commercial drivers who engage in hands-free mobile telephone conversations. FMCSA Response. The Agency reviewed research on cognitive distraction and determined that existing research results vary. FMCSA did not receive any significant new research reports from the commenters that would influence our decision on this rule. Hickman, et al. (2010) is the largest and most relevant study on distraction related to CMV drivers. In response to Advocates’ comment on whether the fleets in the study represent a ‘‘best case scenario’’ population, the safety consciousness of a fleet could certainly influence the prevalence of tertiary tasks, but it would not influence the risk in performing these tasks while driving. Thus, we disagree with Advocates. The results of the study represent an accurate assessment of the risks associated with distracted driving regardless of the population used. Emergencies Some commenters thought that the NPRM prohibited CMV drivers from making emergency calls. Commenters believed that calls could not be made to law enforcement to report vehicle accidents, drunk drivers, or other roadside emergencies. UMA noted that its members have largely responded to its advisory on the inherent risks of using cellular phones, and have developed and enforced E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations policies that direct drivers to restrict their use of cellular phones to emergency and security purposes only. FMCSA Response. The Agency agrees with the UMA and the many companies whose cell-phone policies continue to allow the use of mobile telephones to contact law enforcement in cases of emergency and for security purposes. The Agency, however, did not propose to prohibit CMV drivers from placing emergency calls. In the NPRM, the Agency said in § 392.82: ‘‘Emergencies. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services’’ (75 FR 80033, Dec. 21, 2010). This final rule allows a CMV driver to use either a hand-held or hands-free mobile telephone to contact law enforcement or other emergency services for such purposes as reporting an accident or drunk driver. erowe on DSK2VPTVN1PROD with RULES Exceptions to the Hand-Held Ban Some industries requested that their drivers be given a blanket exception to the restriction on using hand-held mobile telephones while operating CMVs in interstate commerce. For example, the National Rural Electric Cooperative Association, Southern Company, and other utility companies requested that their business operations be classified as emergency services. Specialty and heavyweight hauling operations, utility companies, and associations representing them also requested exemptions for their respective industries. The Minnesota Department of Transportation requested an exemption for their non-urban area formula transportation providers to allow hand-held mobile telephone use when communicating with other vehicle operators nearby, as well as with dispatch services. FMCSA Response. Previous Agency decisions support the premise that the CMV operations of utility companies cannot be classified as emergency services.14 They are subject to varying degrees of regulation by Federal, State, and local authorities and do not specifically deal with the protection of life and property. Public utility employees operate large or hazardousmaterial-laden vehicles both day and night throughout the year, sometimes under the most adverse weather conditions. During declarations of emergency, drivers may be eligible for 14 See the Federal Highway Administration’s Notice of Final Disposition entitled, ‘‘Commercial Driver’s License Program; Waivers; Final Disposition,’’ at 53 FR 37313, Sept. 26, 1988. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 exemptions from some regulations under 390.23. Regarding the concerns of the Minnesota non-urban formula transportation program (which receives financial assistance under the Federal Transit Administration’s formula grant program for other than urbanized areas in accordance with 49 U.S.C. 5311), if such service providers are State-owned, then the Federal hand-held mobile telephone restriction will not apply to them; but if the providers are contracted private transportation companies, they will be covered by the restriction. Regardless of whether operators are government-owned or private, the operators may use hands-free mobile telephone communication, including speakerphone or earphone functions, and still abide by the restriction on use of a hand-held phone while operating CMVs. Accordingly, FMCSA is unable to conclude that granting an exception or waiver to these groups is necessary at this time. Outreach The Agency received several comments regarding outreach. Commenters suggested that early driver education is needed because young CMV drivers are operating their vehicles and are using their phones as if they were driving a car (e.g., texting, dialing, etc.). Therefore, commenters recommended that the Agency require CDL schools to educate students on the dangers of cell phone use while driving CMVs. FMCSA Response. The Agency agrees that enforcement and outreach efforts are essential to increase public awareness. Previous DOT campaigns, such as those addressing safety belt use and drinking and driving, have proven to reduce injuries and fatalities. DOT already has in place distracted driving campaigns to educate all vehicle drivers on distracted driving. The Agency believes that many of these efforts are reaching the CMV driver population, both experienced and new drivers. Platforms for sharing distracted driving information include the Web site, http://www.Distraction.gov, as well as outreach on radio and television, which have generally reduced unsafe driver behaviors and boosted compliance awareness. For more information on research, outreach, and education, the reader may reference NHTSA’s Driver Distraction Program. This program is a plan to communicate NHTSA’s priorities to the public with regard to driver distraction safety challenges, focusing on the longterm goal of eliminating crashes that are PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 75479 attributable to distraction. The complete overview can be found at http:// www.distraction.gov/files/dot/ 6835_DriverDistractionPlan_414_v6_tag.pdf. The Secretary considers preventing distracted driving a priority for the Department and has promoted funding for education, awareness, and outreach on this initiative. Non-CMV Drivers Many commenters suggested that a mobile telephone prohibition be applied to all vehicle drivers, including passenger car drivers, law enforcement, hazardous materials transporters, and government employees, among them publicly-employed school bus drivers. FMCSA Response. The Agency does not have statutory authority to regulate non-CMV drivers. As noted above, other than transportation covered by statutory exemptions, FMCSA has authority to restrict the use of mobile telephones by drivers operating CMVs in interstate commerce. Hand Off the Wheel The New England Fuel Institute, Werner Enterprises, the Alliance of Automobile Manufacturers, and others commented on the language used in the NPRM preamble that stated: ‘‘The Agency is proposing to allow hands-free mobile telephone use as long as it does not require the driver to reach for, dial, or hold a mobile telephone, taking the driver’s eyes off the forward roadway and a hand off the wheel.’’ The commenters felt that the Agency’s use of the phrase ‘‘a hand off the wheel’’ was too restrictive and that it sounded as if FMCSA was implying that drivers maintain both hands on the wheel at all times. FMCSA Response. The Agency understands that drivers often take a hand off the steering wheel to operate the many controls located in a CMV, including the many instrument panel functions, and to shift a manual transmission. It was not the intent of the Agency to prevent a driver from doing necessary tasks required to safely operate the vehicle. FMCSA has not repeated the referenced discussion in the final rule. This clarification will correct any misperception the previous discussion may have created. Full Compliance FMCSA received one comment regarding the analytical treatment of driver compliance in the Agency’s Preliminary Regulatory Evaluation. The commenter argued that the Agency’s assumption of 100 percent compliance overstates the potential benefits of the rule. The commenter further argued that E:\FR\FM\02DER1.SGM 02DER1 75480 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES monitoring and enforcing the rule would be problematic and imperfect, which would further make compliance inconsistent. FMCSA Response. When FMCSA conducts regulatory evaluations for rulemakings, the Agency must establish a baseline for its analysis, which essentially describes the current state of the regulatory conditions involved. A baseline, according to the Office of Management and Budget (OMB) guidance, is ‘‘the best assessment of the way the world would look absent the proposed regulation.’’ 15 The purpose of a regulatory evaluation is to provide decision makers with the estimated costs and benefits associated with the rule. Sometimes the goal of regulation is to correct a deficiency in existing rules manifested, for example, by excessive enforcement violations. In developing the regulatory evaluation, the Agency assumes complete compliance and attempts to show the impact of the provision once it is implemented. When estimating the costs and benefits of rules, the analysis must therefore assume complete (100%) compliance in its hypothetical depiction of various options. This approach creates an ‘‘all things equal’’ relationship between the multiple options within a given rule, as well as between the various rules. Generally speaking, a reduction in compliance, theoretical or actual, reduces not only the associated benefits of a rule, but also the associated costs. Departures from the assumption of full compliance (an accounting of all costs and benefits) removes some costs and some benefits, and therefore, does not result in an overstatement of the potential benefits (or costs) of the rule. Costs and Benefits FMCSA received one comment concerning its estimation of costs and benefits in the Agency’s Preliminary Regulatory Evaluation. Advocates argued that the FMCSA’s cost/benefit analysis shows that the highest net benefit would result from adopting a cell phone restriction that applies to all commercial drivers and to both handheld and hands-free use of cell phones. Advocates further stated that implementing the lower cost requirement in the final rule would be the better choice. FMCSA Response. The FMCSA agrees with Advocates’ comment that the Agency’s cost/benefit analysis shows that the highest net benefit would result from adopting a complete cell phone OMB Circular A–4, Regulatory Analysis (09/17/2003), p. 11. 15 VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 ban for all CMV drivers. The commenters, however, did not recognize the distinction between a cost/benefit analysis and a threshold analysis, which are both used in the Agency’s analysis for this rule. OMB recognizes that it will not always be possible to express in monetary units all of the important benefits and costs of rules. If the nonquantified benefits and costs are likely to be important, OMB guidance 16 requires that a threshold analysis be carried out in order to evaluate their significance. A threshold or a breakeven analysis answers the question, ‘‘how small could the value of the nonquantified benefits be (or how large would the value of the non-quantified costs need to be) before the rule would yield zero net benefits’’? The Agency is not required to choose the regulatory option with the highest net benefit. In the NPRM, FMCSA offered its preference for Option Four (a restriction on the use of hand-held mobile telephones by all interstate CMV drivers) because it minimizes (for an entire CMV population) the costs of restricting mobile telephone use, including costs associated with inconvenience, disruption of patterns of business operations, and stifling technological innovations. Furthermore, it is not clear whether talking on a mobile telephone presents a significant risk while driving. In the final Regulatory Evaluation, the Agency recalculated the estimated costs in order to incorporate a more recent price of diesel fuel. The recalculation affected Options Two (a restriction on the use of all mobile telephones while operating a CMV for all interstate drivers) and Three (a restriction on the use of all mobile telephones while operating a passenger carrying CMV for all interstate drivers). The revised estimated net benefits of Option Two are negative. B. PHMSA Comments Security Concerns PHMSA received one comment from the Chemical Facility Security News concerning the reporting of security incidents. The commenter was concerned that a ban on the use of cell phones may prevent drivers from reporting potential security threats while en route to their destination. The commenter noted that over the road truck drivers were one of the first groups that the Department of Homeland Security (DHS) targeted in its ‘‘If You See Something, Say SomethingTM’’ Campaign. DHS Office of Management and Budget Circular A– 4, Sept. 17, 2003, p. 2. 16 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 recognized that truck drivers would be seeing many things in operation of their commercial vehicles that might be indicators of potential terrorist activities, including attempts at hijacking hazardous materials. The commenter recognizes that this rule would not stop those reports from being made, but would require the delay of those reports until the vehicle was parked off the roadway. PHMSA Response. As noted above in the FMCSA response, this final rule allows a CMV driver to use either a hand-held or hands-free mobile telephone to contact law enforcement or other emergency services for such purposes as reporting potential terrorist activities, including attempts to hijack hazardous materials. Complete Mobile Telephone Ban A few commenters, including API, NTSB, and Advocates thought that PHMSA should ban both hand-held and hands-free mobile telephone use. The ATA strongly opposed banning of hands-free devices. PHMSA Response. See FMCSA response above. CB Radios API also suggested that PHMSA ban the use of CB radios for drivers of CMVs. The commenter suggests adding regulatory language to include restricting the use of ‘‘CB radios or other headset devices.’’ PHMSA Response. The use of CB radios by CMV drivers is outside the scope of this rulemaking. Employer Liability ATA stated that employers should not be held responsible for a driver’s use of a hand-held mobile telephone. ATA suggested the Agency add the word ‘‘knowingly’’ to § 392.82 so that it would read as follows: ‘‘No motor carrier shall knowingly allow or require its drivers to use a hand-held mobile telephone while driving a CMV.’’ PHMSA Response. See FMCSA response above. Law Enforcement Robert Baldwin is concerned that state police and other law enforcement officials will not be held to the same standard as CMV drivers. PHMSA Response. The use of mobile communications devices by law enforcement officials is outside the scope of this rulemaking. IV. Discussion of the Rule This rule amends regulations in 49 CFR parts 177, pertaining to carriage of hazardous materials by public highway; E:\FR\FM\02DER1.SGM 02DER1 erowe on DSK2VPTVN1PROD with RULES Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations parts 383 and 384, concerning the Agency’s CDL regulations; part 390, general applicability of the FMCSRs; part 391, driver qualifications and disqualifications; and part 392, driving rules. In general, this rule reduces the risks of distracted driving by restricting hand-held mobile telephone use by drivers who operate CMVs. This rulemaking restricts a CMV driver from holding a mobile telephone to conduct a voice communication, dialing a mobile telephone by pressing more than a single button, or reaching for a mobile phone in an unacceptable and unsafe manner (e.g. reaching for any mobile telephone on the passenger seat, under the driver’s seat, or into the sleeper berth). Thus, a driver of a CMV who desires to use a mobile phone while driving will need to use a compliant mobile telephone (such as hands-free) located in close proximity to the driver that can be operated in compliance with this rule. Thus, the ease of ‘‘reach’’ or accessibility of the phone is relevant only when a driver chooses to have access to a mobile telephone while driving. Essentially, the CMV driver must be ready to conduct a voice communication on a compliant mobile telephone, before driving the vehicle. The rule includes definitions related to the hand-held mobile telephone restriction. The rule adds a driver disqualification provision for: (1) Interstate CMV drivers convicted of using a hand-held mobile telephone, and (2) CDL holders convicted of two or more serious traffic violations of State or local laws or ordinances on motor vehicle traffic control, including using a hand-held mobile telephone. The rule also requires interstate motor carriers to ensure compliance by their drivers with the restrictions on use of a hand-held mobile telephone while driving a CMV. Finally, the rule prohibits motor carriers and employers from requiring or allowing a CMV driver to use a handheld mobile telephone while operating in interstate commerce. There is a limited exception to the hand-held mobile telephone restriction. This exception allows CMV drivers to use their hand-held mobile telephones if necessary to communicate with law enforcement officials or other emergency services. This rulemaking also amends the authority citations for 49 CFR parts 177, 383, 384, 390, 391, and 392 to correct statutory references and eliminate references that are either erroneous or unnecessary. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 Section 177.804 PHMSA adds a new paragraph (c) to prohibit the use of hand-held mobile telephones by any CMV driver transporting a quantity of hazardous materials requiring placarding under Part 172 of the 49 CFR or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73. As such, motor carriers and drivers who engage in the transportation of covered materials must comply with the distracted driving requirements in § 392.82 of the FMCSRs. This ensures that the FMCSA restriction on a driver’s use of handheld mobile telephones applies to both intrastate and interstate motor carriers operating CMVs as defined in 49 CFR 390.5. Section 383.5 FMCSA adds a new definition for the term ‘‘mobile telephone.’’ The Agency adopts a definition of ‘‘mobile telephone’’ based on the FCC regulations to cover the multitude of devices that allow users to send or receive voice communication while driving. It identifies the type of activity that is restricted by this rule. The definition of ‘‘mobile telephone’’ reflects the wide variety of radio telephone services, in addition to cell phone services, that are licensed by FCC and might be available for use in a CMV. ‘‘Mobile telephone’’ could include, for example, a satellite telephone service or a broadband radio service. Using such wireless communication services is just as distracting to a CMV driver as using a cell phone. FCC classifies these services as ‘‘commercial mobile radio services,’’ which are incorporated into the definition of mobile telephone. The FCC definition for mobile telephone does not include two-way or Citizens Band radio services. To be consistent and to address commenters’ concerns, FMCSA modified the existing definition of ‘‘texting’’ in 49 CFR 390.5 to reflect the Agency’s restriction on a driver’s use of a hand-held mobile telephone in this rule. FMCSA eliminated the dialing exception, as it would now be considered texting. Under the provisions implemented in this rule, the driver can press a single button to initiate or terminate a call. The Agency also removed the proposed definition of ‘‘using a hand-held mobile telephone’’ from § 383.5. Part 383 establishes the disqualification of CDL drivers that is defined by State or local law or ordinance on motor vehicle traffic control that restricts or prohibits the use of hand-held mobile telephones. In contrast, the Federal disqualification PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 75481 standards and definitions are contained in §§ 391.15 and 390.5. Section 383.51 In Table 2 to 49 CFR 383.51, FMCSA adds a new serious traffic violation that would result in a CDL driver being disqualified. This serious traffic violation is a conviction for violating a State or local law or ordinance on motor vehicle traffic control restricting or prohibiting hand-held mobile telephone use while driving a CMV. The Agency modified the definition of ‘‘driving’’ in footnote 2, removing the phrase ‘‘with the motor running’’ and replacing it with ‘‘on the highway’’ (consistent with our definition of ‘‘highway’’ in 49 CFR 390.5), to clarify the scope of the restriction. The modified definition now reflects the use of hybrid vehicles on the highways, which can be operated without the motor running. Our definition for ‘‘driving’’ now reads as follows: ‘‘Driving, for the purpose of this disqualification, means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.’’ The Agency’s decision to change the definition of driving is consistent with the provisions of 49 U.S.C. 31310(e), which indicates the serious traffic violation must occur while the driver is operating a CMV that requires a CDL; the operative provisions in the revised table 2 of § 383.51(c) limit the types of violations that could result in a disqualification accordingly. States must disqualify a CDL driver whenever that driver is convicted of the triggering number of violations while operating in any State where such conduct is restricted or prohibited by a State or local law or ordinance on motor vehicle traffic control. Section 384.301 Due to intervening amendments (76 FR 39019, July 5, 2011; 76 FR 68332, November 4, 2011), FMCSA redesignates proposed paragraph (f) as paragraph (h). It requires all States that issue CDLs to implement the new provisions in part 383 that relate to disqualifying CDL drivers for violating the new serious traffic violation of using a hand-held mobile telephone while driving a CMV. States are required to implement these provisions as soon as practical, but not later than 3 years after this rule is effective. E:\FR\FM\02DER1.SGM 02DER1 75482 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations Section 390.3 FMCSA modifies several discretionary regulatory exemptions concerning the applicability of the existing FMCSRs, including one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver), not for direct compensation (49 CFR 390.3(f)(1) and (6)). The Agency finds that this action is necessary for public safety regarding school bus transportation by interstate motor carriers, a finding required by the applicable statutory provisions, as explained above in the legal authority section. In addition, the Agency determined that, in order to enhance public safety to the greatest extent possible, the rule will apply to the operation by drivers of small, passengercarrying vehicles (designed to transport 9–15 passengers), not for direct compensation, who are otherwise exempt from most of the FMCSRs under 49 CFR 390.3(f)(6). Section 390.5 FMCSA amends 49 CFR 390.5 by adding new definitions for the terms ‘‘mobile telephone’’ and ‘‘use a handheld mobile telephone,’’ for general application. In this rulemaking, FMCSA defines ‘‘use a hand-held mobile telephone’’ to clarify that certain uses of a hand-held mobile telephone are restricted, including holding, dialing, and reaching in a proscribed manner for the mobile telephone to conduct voice communication. (That is, if a compliant mobile telephone is close to the driver and operable by the driver while restrained by properly installed and adjusted seat belts, then the driver would not be considered to be reaching. Reaching for any mobile telephone on the passenger seat, under the driver’s seat, or into the sleeper berth are not acceptable actions.) As stated above in § 383.5, FMCSA also modified the definition of ‘‘texting.’’ FMCSA recognizes that mobile telephones often have multi-functional capability and is not prohibiting the use of mobile telephones for other uses. Of course, other types of activities using a mobile telephone might be covered by other rules, such as those addressing texting while driving a CMV. erowe on DSK2VPTVN1PROD with RULES Section 391.2 FMCSA amends 49 CFR 391.2, which provides certain exceptions to the requirements of part 391 for custom farm operations, apiarian industries, and specific farm vehicle drivers, to enable the Agency to make violations of the Federal mobile telephone restriction VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 a disqualifying offense for such drivers. While the explicit Federal restriction against hand-held mobile telephone use applies directly to these drivers, the disqualification provision in § 391.15(g) below would not apply without this amendment to the current exceptions under 49 CFR 391.2. Section 391.15 FMCSA adds a new paragraph (f) to 49 CFR 391.15 entitled, ‘‘Disqualification for violation of restriction on using a hand-held mobile telephone while driving a commercial motor vehicle.’’ This provision provides for the disqualification from operating a CMV in interstate commerce of any driver convicted of two or more violations within a 3-year period of the new hand-held mobile telephone use restriction while operating a CMV as set forth in § 392.82. For the driver’s first hand-held mobile telephone use conviction, the Agency could assess a civil penalty against the driver. If a driver is convicted of committing a second hand-held mobile telephone use violation within 3 years, he or she would be disqualified for 60 days, in addition to being subject to the applicable civil penalty. For three or more hand-held mobile telephone use convictions for violations committed within 3 years, a driver would be disqualified for 120 days, in addition to being subject to the applicable civil penalty. This change to the disqualifying offenses for interstate drivers mirrors the Agency’s corresponding new provisions governing the disqualification offenses for CDL drivers in § 383.51(c). The required number of convictions to cause a disqualification by FMCSA and the period of disqualification is the same: 60 days for the second offense within 3 years and 120 days for three or more offenses within 3 years. In addition, the first and each subsequent violation of such a restriction or prohibition by a driver are subject to civil penalties imposed on such drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, A(4)). Section 392.80 FMCSA eliminates the exception pertaining to school bus drivers as a necessary change in light of § 390.3 (f)(1) and (6). Section 392.82 In § 392.82(a), FMCSA adds a new restriction on use of a hand-held mobile telephone while driving a CMV. This section also states that motor carriers must not allow or require CMV drivers PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 to use a hand-held mobile telephone while driving. Any violation by an employer would subject the employer to civil penalties in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and part 386 Appendix B, paragraph (a)(3)). In § 392.82(b), a definition of ‘‘driving a commercial motor vehicle’’ is incorporated into the restriction on use of a hand-held mobile telephone while driving, in order to confine the use of that term to the restriction and the related disqualification. We also seek to avoid limiting the scope of the same term as used in other provisions of the FMCSRs. FMCSA has eliminated the exception pertaining to school bus drivers as a necessary change in light of § 390.3 (f)(1) and (6). FMCSA adds a limited exception to the hand-held mobile telephone restriction to allow CMV drivers to use their hand-held mobile telephones if necessary to communicate with law enforcement officials or other emergency services. Emergency services are not limited to traditional emergency responders. It may include those who provide security and protection in the special environments in which CMV drivers operate. CMV drivers are always encouraged to report incidents that may threaten national security in a manner consistent with safety.’’ 17 V. Regulatory Analyses The rule adopted here restricts the use of hand-held mobile telephones by drivers of CMVs. FMCSA adds new driver disqualification sanctions for: (1) Interstate drivers of CMVs who fail to comply with this Federal restriction and (2) CDL holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of hand-held mobile telephones. Additionally, motor carriers operating CMVs are prohibited from requiring or allowing a CMV driver to engage in the use of a hand-held mobile telephone. This rulemaking improves safety on the Nation’s highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving 17 The Department of Homeland Security (DHS) encourages everyone to report suspicious observations under the ‘‘See Something, Say SomethingTM’’ brand to a regional or local number. The Transportation Security Administration (TSA) has ambitiously recruited active participation from the commercial motor carrier community for both its Highway Watch® and First ObserverTM programs, encouraging commercial drivers to ‘‘observe, assess, and report’’ suspicious activity and to report such activity to a national call center ((888) 217–5902) in a manner consistent with safety. E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations drivers of CMVs. In addition, the rulemaking reduces the financial and environmental burden associated with these crashes and promotes the efficient movement of traffic and commerce on the Nation’s highways. The National Highway Traffic Safety Administration reports that, in 2009, 5,474 people were killed on U.S. roadways in motor vehicle crashes that were reported to have involved distracted driving.18 These fatalities impose a considerable monetary cost to society estimated to be approximately $32.8 billion.19 In the regulatory evaluation (in the docket for this rule), FMCSA estimates the benefits and costs of implementing a restriction on the use of hand-held mobile telephones while driving a CMV. FMCSA and PHMSA’s threshold analysis for this rule shows that restricting hand-held mobile telephones 75483 would lead to an estimated one-year cost of $12.1 million. Current guidance from DOT’s Office of the Secretary places the value of a statistical life at $6.0 million. Consequently, this rule will need to eliminate any combination of crash types equivalent to two fatalities per year in order for the benefits of this rule to equal the costs. These results are summarized below in Table 1. TABLE 1—THRESHOLD ANALYSIS RESULTS Total estimated annual costs * Restriction on Use of Hand-Held Mobile Telephones—All CMV Drivers. $12.1 Million *** ................................................ Annual break-even number of fatalities prevented ** Approximately 2. Fatalities. * This cost estimate does not include a one-time cost to the States of $2.2 million. ** A statistical life is valued at $6 million. *** This is a worst case annual cost as it would apply only if 100% of CMV drivers were theoretically replaced every year. Because FMCSA and PHMSA are addressing two of the risky activities— reaching for and dialing on a hand-held mobile telephone—cited in the Olson, et al. (2009) study, restricting the use (including holding) of hand-held mobile telephones is expected to prevent more than two fatalities and the benefits to justify the cost. 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. 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 FMCSA Carriers are not required to report revenue to the Agency, but are required to provide the Agency with the number of power units (PUs) they operate when they register with the Agency and to update this figure biennially. Because FMCSA does not have direct revenue figures, PUs serve as a proxy to determine the carrier size that would qualify as a small business given the SBA’s revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a PU. With regard to truck PUs, the Agency determined in the 2003 Hours-ofService Rulemaking RIA 20 that a PU produces about $172,000 in revenue annually (adjusted for inflation).21 According to the SBA, motor carriers with annual revenue of $25.5 million are considered small businesses.22 This equates to 148 PUs (25,500,000/ 172,000). Thus, FMCSA considers motor carriers of property with 148 PUs or fewer to be small businesses for purposes of this analysis. The Agency then looked at the number and percentage of property carriers with recent activity that would have 148 PUs or fewer. The results show that at least 99 percent of all interstate property carriers with recent activity have 148 PUs or fewer.23 This amounts to 481,788 carriers. Therefore, the overwhelming majority of interstate carriers of property are considered small entities. With regard to passenger carriers, the Agency conducted a preliminary analysis to estimate the average number of PUs for a small entity earning $7 million annually, based on an assumption that a passenger-carrying PU generates annual revenues of $150,000. This estimate compares reasonably to the estimated average annual revenue per PU for the trucking industry ($172,000). The Agency used a lower estimate because passenger carriers generally do not accumulate as many vehicle miles traveled (VMT) per PU as carriers of property; 24 and it is assumed, therefore, that they would generate less revenue on average. The analysis concludes that passenger carriers with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) are considered small entities. The Agency then looked at the number and percentage of passenger carriers registered with FMCSA that have 47 PUs or fewer. The results show that at least 96 percent of all interstate 18 National Highway Traffic Safety Administration Traffic Safety Facts, Research Note, DOT HS 811 379, September 2010. 19 This cost assumes a value of statistical life equal to $6 million. 20 FMCSA Regulatory Analysis, ‘‘Hours-of-Service of Drivers; Driver Rest and Sleep for Safe Operations,’’ Final Rule (68 FR 22456, Apr. 23, 2003). 21 The 2000 TTS Blue Book of Trucking Companies, number adjusted to 2008 dollars for inflation. 22 U.S. Small Business Administration Table of Small Business Size Standards matched to North American Industry Classification (NAIC) System codes, effective August 22, 2008. See NAIC subsector 484, Truck Transportation. 23 Motor Carrier Management Information System (MCMIS) as of June 17, 2010. 24 FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and 20; http://fmcsa.dot.gov/factsresearch/LTBCF2008/Index-2008. erowe on DSK2VPTVN1PROD with RULES Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures FMCSA and PHMSA have determined that this rulemaking action is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563 (76 FR 3821, Jan. 21, 2011), and that it is significant under DOT regulatory policies and procedures because of the substantial Congressional and public interest concerning the crash risks associated with distracted driving. However, the estimated economic costs do not exceed the $100 million annual threshold. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\02DER1.SGM 02DER1 75484 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations passenger carriers with recent activity have 47 PUs or fewer.25 This amounts to 11,338 carriers. Therefore, the overwhelming majority of interstate passenger carriers are considered small entities. In order to estimate the economic impact of the rule on small entities, FMCSA computed a total annual cost per carrier for each industry segment. First, FMCSA allocated the total cost 26 of the rule in the first year among property and passenger carriers according to their respective shares of total carrier population.27 Interstate property carriers constitute 98 percent of the total of interstate carriers, whereas interstate passenger carriers constitute 2 percent. The total annual cost of the rule ($12,095,948) 28 was thus weighted by 98 percent for property carriers, leading to a total cost of $11,854,036, and by 2 percent for passenger carriers, leading to a total cost of $241,919. Next, FMCSA divided the two weighted costs by their respective number of small carriers, as described above, arriving at a cost-per-carrier for each segment: $11,854,029/481,788 = $24.60 for property carriers; and $241,919/11,338 = $21.33 for passenger carriers, for a weighted average of $24.50 per small entity. While this rule clearly impacts a substantial number of small entities, the Agency does not consider a weighted average cost of approximately $24.50 per entity per year to be economically significant in light of the estimated average annual revenue of $172,000.29 30 PHMSA Similarly, PHMSA has conducted an economic analysis of the impact of this rule on small entities. PHMSA’s incorporation of the FMCSA restriction into the HMR may affect nearly 1,490 small entities; however, the direct costs of this rule that small entities may incur are only expected to be minimal. PHMSA relied on the cost estimates for property carriers identified by FMCSA above since these costs were higher than PHMSA found in its regulatory flexibility analysis conducted in support of its April 29, 2011 NPRM. While the 25 MCMIS, as of June 17, 2010. total cost in this section does not include costs to the States. 27 The actual cost burden may not necessarily be proportionate to the carrier segment’s share in the industry. Absent information on this distribution, FMCSA applied the above assumption. 28 Excluding costs to the States. 29 Regulatory Analysis for: Hours-of-Service of Drivers; Driver Rest and Sleep for Safe Operations, Final Rule, FMCSA (68 FR 22456; Apr. 23, 2003). 30 The 2000 TTS Blue Book of Trucking Companies, number adjusted to 2008 dollars for inflation. erowe on DSK2VPTVN1PROD with RULES 26 The VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 final rule will clearly impact a substantial number of small entities, the Agency did not consider an average annual cost of $24.50 per entity to be economically significant. Accordingly, FMCSA and PHMSA Administrators certify that a regulatory flexibility analysis is not necessary. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), FMCSA and PHMSA seek to assist small entities in their understanding of this rule so they can better evaluate its effects on them. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section of this rule. FMCSA will not retaliate against small entities that question or complain about this rule or any policy or action of the Agency. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1–(888) REG–FAIR (1–(888) 734–3247). Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector, of $ 143.1 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year. Though this rule will not result in such expenditure, FMCSA and PHMSA discuss the effects of this rule elsewhere in this preamble. Paperwork Reduction Act This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3520). Privacy Impact Assessment FMCSA and PHMSA conducted a Privacy Threshold Analysis for the rule on restricting the use of hand-held PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 mobile telephones by drivers of CMVs and determined that it is not a privacysensitive rulemaking because the rule does not require any collection, maintenance, or dissemination of Personally Identifiable Information from or about members of the public. Executive Order 13132 (Federalism) A rule has implications for federalism under Executive Order 13132 entitled, ‘‘Federalism,’’ if it has a substantial direct effect on State or local governments, on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. FMCSA and PHMSA recognize that, as a practical matter, this rule may have some impact on the States. None of the State interests contacted by FMCSA, however, or any other commenter expressed concerns to the FMCSA or PHMSA dockets pertaining to the Federalism implications of this rulemaking initiative. In the most general sense, under longstanding principles, the FMCSRs establish minimum safety regulations that may be supplemented by the States, as long as they are consistent with the regulations. The NPRM described the effect of the proposed rules in accordance with provisions already set forth in the FMCSRs, which establish the basis for the scope of any preemption (75 FR 16398, Apr. 1, 2010). Specifically, 49 CFR 390.9 states that except as otherwise specifically indicated, subchapter B of this chapter [III of Title 49, CFR] is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the persons subject thereto. This provision allows the States and their subdivisions to enforce their laws and regulations relating to safety, as long as that would not preclude persons subject to the FMCSRs from fully complying with them. This provision satisfies the requirements of 49 U.S.C. 31136(c)(2)(B) by minimizing unnecessary preemption and allowing the States to establish additional regulations that do not prevent full compliance with the FMCSRs. (See also 49 U.S.C. 31141(c)). Executive Order 12630 (Taking of Private Property) This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 entitled, ‘‘Governmental E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations and, therefore, did not consider any such standards. Actions and Interference with Constitutionally Protected Property Rights.’’ Executive Order 12988 (Civil Justice Reform) This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 entitled, ‘‘Civil Justice Reform,’’ to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children) FMCSA and PHMSA analyzed this rule under Executive Order 13045 entitled, ‘‘Protection of Children from Environmental Health Risks and Safety Risks.’’ This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children. Executive Order 13211 (Energy Supply, Distribution, or Use) FMCSA and PHMSA analyzed this rule under Executive Order 13211 entitled, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.’’ The agencies determined that it is not a ‘‘significant energy action’’ under that order. Though it is nonetheless a potentially ‘‘significant regulatory action’’ under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs, OMB, has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. erowe on DSK2VPTVN1PROD with RULES Technical Standards The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. FMCSA and PHMSA are not aware of any technical standards used to address mobile telephone use by CMV drivers VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 National Environmental Policy Act FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), determined under our environmental procedures Order 5610.1, published March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily assessed that this action requires an Environmental Assessment (EA) to determine if a more extensive Environmental Impact Statement (EIS) is required. The findings in the Final EA indicate there are no significant positive or negative impacts to the environment expected from the various options in the rule though there could be minor impacts on emissions, hazardous materials spills, solid waste, socioeconomics, and public health and safety. Thus, FMCSA, as the lead agency in this initiative, issues a Finding of No Significant Impact (FONSI) and will not perform an EIS. PHMSA discussed NEPA requirements in its April 29, 2011 NPRA (76 FR 23929). Specifically, PHMSA indicated that it did not anticipate any significant positive or negative impacts on the environment expected to result from the rulemaking action. In the NPRM, PHMSA requested comments regarding safety and security measures that would provide greater benefit to the human environment or on alternative actions the agency could take that would provide beneficial impacts. PHMSA did not receive any comments on this matter. In addition, the FMCSA prepared an Environmental Assessment for this rulemaking, and will sign a Finding of No Significant Impact (FONSI). As is noted in 40 CFR 1506.3, it is appropriate for an agency to accept an environmental document in part or in whole, as long as the actions covered by the original NEPA analysis are substantially the same. PHMSA hereby states that the rulemakings are substantially similar, and adopts the Final Environmental Assessment (FEA) as prepared by FMCSA, as well as the conclusions the FEA reaches. The FMCSA FEA has been used to support a FONSI, which has been prepared and signed by the appropriate decision maker within PHMSA. No further NEPA analysis will be performed. FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c), (42 U.S.C. 7401 et seq.) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA’s general PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 75485 conformity requirement since it will not result in any potential increase in emissions that are above the general conformity rule’s de minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, based on our analysis, it is reasonably foreseeable that the rule will not significantly increase total CMV mileage, nor will it significantly change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor carriers. The action merely establishes requirements to restrict a driver’s use of a hand-held mobile telephone while operating a CMV. List of Subjects 49 CFR Part 177 Hazardous materials transportation, Motor carriers, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 383 Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers. 49 CFR Part 384 Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers. 49 CFR Part 390 Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. 49 CFR Part 391 Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation. 49 CFR Part 392 Alcohol abuse, Drug abuse, Highway safety, Motor carriers. For the reasons discussed in the preamble, FMCSA and PHMSA amend 49 CFR parts 177, 383, 384, 390, 391, and 392 as follows: PART 177—CARRIAGE BY PUBLIC HIGHWAY 1. The authority citation for part 177 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. 2. Amend § 177.804 by adding a new paragraph (c) to read as follows: ■ § 177.804 Compliance with Federal Motor Carrier Safety Regulations. * * * * * (c) Prohibition against the use of hand-held mobile telephones. In accordance with § 392.82 of this E:\FR\FM\02DER1.SGM 02DER1 75486 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations chapter, a person transporting a quantity of hazardous materials requiring placarding under Part 172 of this chapter or any quantity of a material listed as a select agent or toxin in 42 CFR part 73 may not engage in, allow, or require use of a hand-held mobile telephone while driving. PART 383—COMMERCIAL DRIVER’S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 3. The authority citation for part 383 is revised to read as follows: ■ Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 214 and 215, Pub. L. 106–159, 113 Stat. 1748, 1766, 1767; sec. 4140, Pub. L. 109–59, 119 Stat. 1144, 1746; and 49 CFR 1.73. 4. Amend § 383.5 by adding the definition ‘‘mobile telephone’’ in alphabetical order and revising the ■ definition of ‘‘texting’’ to read as follows: § 383.5 Definitions. * * * * * Mobile telephone means a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission, 47 CFR 20.3. It does not include 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, pressing more than a single button to initiate or terminate a voice communication using a mobile telephone, or engaging in any other form of electronic text retrieval or entry, for present or future communication. (2) Texting does not include: (i) Inputting, selecting, or reading information on a global positioning system or navigation system; or (ii) Pressing a single button to initiate or terminate a voice communication using a mobile telephone; or (iii) Using a device capable of performing multiple functions (e.g., fleet management systems, dispatching devices, smart phones, citizens band radios, music players, etc.) for a purpose that is not otherwise prohibited in this part. * * * * * ■ 5. Amend § 383.51 by adding a new paragraph (c)(10) to Table 2 and revising footnote 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: * * (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 CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for . . . For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CLP or CDL holder’s license or non-CMV driving privileges, for . . . 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 CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for . . . 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 CLP or CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CLP or CDL holder’s license or nonCMV driving privileges, for . . . * 60 days ........................... * Not applicable ................. * * 120 days ......................... Not applicable. * * * * * * * 2 Driving, for the purpose of this disqualification, means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. * * * * * 7. Amend § 384.301 by adding a new paragraph (h) to read as follows: ■ PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER’S LICENSE PROGRAM § 384.301 Substantial compliance— general requirements. erowe on DSK2VPTVN1PROD with RULES * 6. The authority citation for part 384 is revised to read as follows: ■ Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 and 215, Pub. L. 106– 159, 113 Stat. 1748, 1753, 1767; and 49 CFR 1.73. VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 * * * * (h) A State must come into substantial compliance with the requirements of subpart B of this part in effect as of January 3, 2012) as soon as practical, but not later than January 3, 2015. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 8. The authority citation for part 390 is revised to read as follows: ■ Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 31151, and 31502; sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677– 1678; secs. 212 and 217, Pub. L. 106–159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106– 159 (as transferred by sec. 4115 and amended by secs. 4130–4132, Pub. L. 109–59, 119 Stat. E:\FR\FM\02DER1.SGM 02DER1 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations 1144, 1726, 1743–1744); sec. 4136, Pub. L. 109–59, 119 Stat. 1144, 1745; and 49 CFR 1.73. 9. 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 of this chapter. * * * * * ■ 10. Amend § 390.5 by adding the definitions ‘‘mobile telephone’’ and ‘‘use a hand-held mobile telephone’’ in alphabetical order and revising the definition of ‘‘texting’’ to read as follows: § 390.5 Definitions. erowe on DSK2VPTVN1PROD with RULES * * * * * 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, pressing more than a single button to initiate or terminate a voice communication using a mobile telephone, or engaging in any other form of electronic text retrieval or entry, for present or future communication. (2) Texting does not include: (i) Inputting, selecting, or reading information on a global positioning system or navigation system; or (ii) Pressing a single button to initiate or terminate a voice communication using a mobile telephone; or (iii) Using a device capable of performing multiple functions (e.g., fleet management systems, dispatching VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 devices, smart phones, citizens band radios, music players, etc.) for a purpose that is not otherwise prohibited in this part. * * * * * Use a hand-held mobile telephone means: (1) Using at least one hand to hold a mobile telephone to conduct a voice communication; (2) Dialing or answering a mobile telephone by pressing more than a single button, or (3) Reaching for a mobile telephone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt that is installed in accordance with 49 CFR 393.93 and adjusted in accordance with the vehicle manufacturer’s instructions. PART 391—QUALIFICATION OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTIONS 11. The authority citation for part 391 is revised to read as follows: ■ Authority: 49 U.S.C. 504, 508, 31133, 31136, and 31502; sec. 4007(b), Pub. L. 102– 240, 105 Stat, 1914, 2152; sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106–159, 113 Stat. 1748, 1767; and 49 CFR 1.73. ■ 12. 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 (g), do not apply to a driver who drives a commercial motor vehicle controlled and operated by a person engaged in custom-harvesting operations, if the commercial motor vehicle is used to— (1) Transport farm machinery, supplies, or both, to or from a farm for custom-harvesting operations on a farm; or (2) Transport custom-harvested crops to storage or market. (b) Apiarian industries. The rules in this part, except for § 391.15(e) and (g), do not apply to a driver who is operating a commercial motor vehicle controlled and operated by a beekeeper engaged in the seasonal transportation of bees. (c) Certain farm vehicle drivers. The rules in this part, except for § 391.15(e) and (g), do not apply to a farm vehicle driver except a farm vehicle driver who drives an articulated (combination) commercial motor vehicle, as defined in § 390.5 of this chapter. For limited exemptions for farm vehicle drivers of articulated commercial motor vehicles, see § 391.67. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 75487 13. 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 (g)(2) of this section. (2) Duration. Disqualification for violation of a restriction on using a hand-held mobile telephone while driving a commercial motor vehicle— (i) Second violation. A driver is disqualified for 60 days if the driver is convicted of two violations of § 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 14. The authority citation for part 392 is revised to read as follows: ■ Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; and 49 CFR 1.73. 15. Amend § 392.80 by revising paragraph (d) to read as follows: ■ § 392.80 Prohibitions against texting. * * * * * (d) Emergency exception. Texting while driving is permissible by drivers of a commercial motor vehicle when necessary to communicate with law enforcement officials or other emergency services. ■ 16. Amend part 392, subpart H, by adding a new § 392.82 to read as follows: § 392.82 Using a hand-held mobile telephone. (a)(1) No driver shall use a hand-held mobile telephone while driving a CMV. (2) No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV. (b) Definitions. For the purpose of this section only, driving means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include E:\FR\FM\02DER1.SGM 02DER1 75488 Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. (c) Emergency exception. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services. Issued on: November 22, 2011. William Bronrott, Deputy Administrator, Federal Motor Carrier Safety Administration. Cynthia L. Quarterman, Administrator, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2011–30749 Filed 12–1–11; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 622 and 640 [Docket No. 100305126–1576–04] RIN 0648–AY72 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; Amendment 10 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS issues this final rule to implement Amendment 10 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (FMP), as prepared and submitted by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils). This rule revises the lobster species contained within the fishery management unit; establishes an annual catch limit (ACL) for Caribbean spiny lobster; revises the Federal spiny lobster tail-separation permit requirements; revises the regulations specifying the condition of spiny lobster landed during a fishing trip; modifies the undersized attractant regulations; modifies the framework procedures and the protocol for cooperative management with Florida; and authorizes the removal of derelict traps in Federal waters off Florida through Florida’s trap cleanup program. Additionally, this rule revises codified text to reflect updated contact erowe on DSK2VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 15:16 Dec 01, 2011 Jkt 226001 information for the state of Florida and regulatory references for the Florida Administrative Code. The intent of this final rule is to specify ACLs for spiny lobster while maintaining catch levels consistent with achieving optimum yield (OY) for the resource. DATES: This rule is effective January 3, 2012. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 3, 2012. ADDRESSES: Electronic copies of the amendment, which includes an environmental impact statement, a regulatory impact review, and the initial regulatory flexibility analysis (IRFA), may be obtained from the Southeast Regional Office Web site at http://sero. nmfs.noaa.gov/sf/pdfs/Spiny_Lobster_ Amendment_10_August2011.pdf. FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: (727) 824– 5305, or email: Susan.Gerhart@noaa.gov. SUPPLEMENTARY INFORMATION: The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). On September 2, 2011, NMFS published a notice of availability for Amendment 10 and requested public comment (76 FR 54227). On September 23, 2011, NMFS published a proposed rule for Amendment 10 and requested public comment (76 FR 59102). The proposed rule and Amendment 10 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule are provided below. This final rule will remove all species from the FMP except the Caribbean spiny lobster (spiny lobster). The Councils and NMFS have determined the four other lobster species currently in the FMP are not in need of Federal management at this time. If landings or effort change for the lobster species being removed from the FMP and the Councils determine management at the Federal level is needed, these species could be added back into the FMP at a later date. This rule will establish an ACL, an annual catch target (ACT) and an AM for spiny lobster. For the recreational and commercial spiny lobster sectors combined, the ACL is 7.32 million lb (3.32 million kg), whole weight. The combined ACT is 6.59 million lb, (2.99 million kg) whole weight. The ACT will PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 serve as the AM for the spiny lobster stock. If the ACT is exceeded in any year, the Councils will convene a scientific panel to review the ACL and ACT, and determine if additional AMs are needed. This final rule revises the Federal spiny lobster tail-separation permit requirements to ensure permit issuance is limited to commercial fishermen. This rule requires applicants for a Federal spiny lobster tail-separation permit to possess either (1) a Federal spiny lobster permit or (2) a valid Florida Restricted Species Endorsement and a valid Crawfish Endorsement associated with a valid Florida Saltwater Products License. This rule also requires lobster to be landed either all whole or all tailed during a single fishing trip to discourage selective tailing of potentially undersized lobsters and thereby aid the enforcement of the minimum size limit. This rule revises Federal regulations specific to the use of undersized attractants to be consistent with current Florida regulations, which allow the retention of as many as 50 spiny lobsters less than the minimum size limit and one per trap. To facilitate timely adjustments to harvest parameters and other management measures, this final rule revises the current framework procedures. This revision gives the Councils and NMFS greater flexibility to more promptly alter harvest parameters and other management measures as new scientific information becomes available. An Endangered Species Act (ESA) biological opinion, completed on August 27, 2009, evaluated the impacts of the continued authorization of the spiny lobster fishery on ESA-listed species. The biological opinion required the consideration of alternatives to allow the public to remove trap-related marine debris in the exclusive economic zone (EEZ) off Florida. This rule authorizes the removal of traps in Federal waters off Florida through Florida’s trap cleanup program, as provided in existing Florida regulations. Florida’s trap cleanup program includes provisions for public participation. Additionally, this rule includes new incorporations by reference and revises a number of references within the Federal regulations for spiny lobster. Specifically, this rule updates the spiny lobster regulations with the contact information for the state of Florida administrative offices and the relevant references within the Florida statutes and administrative code that are contained within the Federal regulations at 50 CFR parts 622 and 640. E:\FR\FM\02DER1.SGM 02DER1

Agencies

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


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

[Docket No. PHMSA-2010-0227(HM-256A)]
RIN 2126-AB29

Federal Motor Carrier Safety Administration

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

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


Drivers of CMVs: Restricting the Use of Cellular Phones

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

ACTION: Final rule.

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

[[Page 75471]]


DATES: This rule is effective January 3, 2012.

ADDRESSES: For access to the docket to read background documents, 
including those referenced in this document, or to read comments 
received, go to http://www.regulations.gov at any time and insert 
``FMCSA-2010-0096'' or ``PHMSA-2010-0227'' in the ``Keyword'' box, and 
then click ``Search.'' You may also view the docket online by visiting 
the Docket Management Facility in Room W12-140, DOT Building, 1200 New 
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., e.t. 
Monday through Friday, except Federal holidays.
    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
U.S. Department of Transportation's (DOT) complete Privacy Act 
Statement in the Federal Register published on January 17, 2008 (73 FR 
3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

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

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

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

I. Abbreviations

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

II. Background

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

A. Rationale for the Rule

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

[[Page 75472]]

The odds of being involved in a safety-critical event are three times 
greater when the driver is reaching for an object than when the driver 
is not reaching for an object. The odds of being involved in a safety-
critical event are six times greater while the driver is dialing a cell 
phone than when the driver is not dialing a cell phone. These increases 
in risk are primarily attributable to the driver's eyes being off the 
forward roadway. Additionally, these activities have high population 
attributable risk (PAR) percentages. PAR percent is the percent of the 
drivers involved in a safety critical event that would not occur if 
performing the task while driving were eliminated. Tasks that are 
performed more frequently have a higher PAR percentage. The highest PAR 
percentage in the study was 7.6 percent--reaching for an object, 
including cell phones. Dialing a cell phone had a PAR of 2.5. Because 
of the data on distractions associated with the use of hand-held mobile 
telephones while driving \3\(i.e. reaching for and dialing a mobile 
telephone), FMCSA and PHMSA believe it is in the best interest of 
public safety to restrict a CMV driver's use of such devices.
---------------------------------------------------------------------------

    \1\ Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. 
(2009), Driver distraction in commercial vehicle operations, 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration. The study is in the docket at 
FMCSA-2010-0096-0016. Hickman, J., Hanowski, R. & 
Bocanegra, J. (2010), Distraction in commercial trucks and buses: 
assessing prevalence and risk in conjunction with crashes and near- 
crashes, (Document No. FMCSA-RRR-10-049) Washington, DC: Federal 
Motor Carrier Safety Administration. The study is in the docket at 
FMCSA-2010-0096-0004.
    \2\ In popular usage, mobile telephones are often referred to as 
``cell phones.'' As explained later in the final rule, a variety of 
different technologies are licensed by the Federal Communications 
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services; 
thus, the rule here would apply to the range of technologies used to 
provide wireless telephone communications and the rule uses the 
broader term ``mobile telephones.'' However, some of the materials 
discussed in this preamble use the popular term ``cell phone,'' and 
the discussion continues that usage in such cases as appropriate.
    \3\ As discussed under part II.B, the legal authority supporting 
the two regulatory programs of FMCSA and PHMSA differs. FMCSA's 
authority to adopt the FMCSRs applies to CMV drivers who operate in 
interstate commerce. PHMSA's authority to adopt the HMRs extends to 
CMV drivers who operate in intrastate commerce as well.
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    The National Transportation Safety Board (NTSB) determined that one 
probable cause of a November 2004 bus crash was the use of a hands-free 
cell phone. This crash was the impetus for an NTSB investigation (NTSB/
HAR-06/04 PB2007-916201) and a subsequent recommendation to FMCSA that 
the Agency prohibit cell phone use by all passenger-carrying CMVs.\4\ 
FMCSA also received recommendations on cell phone use from its Motor 
Carrier Safety Advisory Committee (MCSAC). One of MCSAC's 
recommendations for the National Agenda for Motor Carrier Safety was 
that FMCSA initiate a rulemaking to ban a driver's use of hand-held and 
hands-free mobile telephones while operating a CMV.
---------------------------------------------------------------------------

    \4\ NTSB (2006). Motorcoach collision with the Alexandria Avenue 
Bridge overpass, George Washington Memorial Parkway, Alexandria, 
Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR-06/04; 
NTIS report number PB2007-916201). Retrieved May 16, 2011, from: 
http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
---------------------------------------------------------------------------

    It is not clear, however, if simply talking on a mobile telephone 
presents a significant risk while driving. For example, Olson, et al. 
(2009) detailed the risks of reaching for and dialing a phone while 
driving and found that ``talking or listening to a hands-free phone'' 
and ``talking or listening to a hand-held phone'' were relatively low-
risk activities that involved only brief periods of eyes off the 
forward roadway. FMCSA and PHMSA determine that it is the action of 
taking one's eyes off the forward roadway to reach for and dial a hand-
held mobile telephone \5\ (two high PAR activities) that has the 
greatest risk. The Agencies address those risky behaviors by 
restricting holding mobile telephones while driving a CMV.
---------------------------------------------------------------------------

    \5\ The concept of ``holding'' is included in our definition of 
``use a hand-held mobile telephone.''
---------------------------------------------------------------------------

    While no State has completely banned mobile telephone use, some 
States have gone further than this rule for certain categories of 
drivers. For example, 19 States and the District of Columbia prohibit 
the use of all mobile telephones while driving a school bus. 
Additionally, nine States and the District of Columbia have traffic 
laws prohibiting all motor vehicle drivers from using a hand-held 
mobile telephone while driving. Transit bus and motorcoach drivers are 
the focus of stricter mobile telephone rules in some States and local 
jurisdictions.\6\ The restriction of hand-held mobile telephone use by 
all CMV drivers is based on available data and in line with existing 
regulations that hold CMV drivers to higher standards.\7\
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    \6\ Insurance Institute for Highway Safety list of cellphone 
laws. Retrieved June 20, 2011, from http://www.iihs.org/laws/cellphonelaws.aspx.
    \7\ See 49 CFR 392.2, Applicable operating rules, which states 
that every commercial motor vehicle must be operated in accordance 
with the laws, ordinances, and regulations of the jurisdiction in 
which it is being operated. However, if a regulation of the Federal 
Motor Carrier Safety Administration imposes a higher standard of 
care than that law, ordinance or regulation, the Federal Motor 
Carrier Safety Administration regulation must be complied with.
---------------------------------------------------------------------------

Distracted Driving Summit
    The information and feedback DOT received during its first 
Distracted Driving Summit, held September 30-October 1, 2009, in 
Washington, DC, highlighted the need for action and demonstrated 
widespread support for a ban against texting and mobile telephone use 
while driving. Summit participants, who included industry 
representatives, safety experts, elected officials, and law 
enforcement, gathered to address the safety risk posed by this growing 
problem across all modes of surface transportation. U.S. Transportation 
Secretary Ray LaHood stated: ``Keeping Americans safe is without 
question the Federal government's highest priority.'' The Secretary 
pledged to work with Congress to ensure that the issue of distracted 
driving would be appropriately addressed.\8\ At the conclusion of the 
Summit, the Secretary announced a series of concrete actions that the 
Obama Administration and DOT would be taking to address distracted 
driving.
---------------------------------------------------------------------------

    \8\ DOT (Oct. 1, 2009). U.S. Transportation Secretary Ray LaHood 
Announces Administration-Wide Effort to Combat Distracted Driving 
(DOT 156-09). Retrieved May 16, 2011, from: http://www.dot.gov/affairs/2009/dot15609.htm.
---------------------------------------------------------------------------

B. Legal Authority

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

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

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

[[Page 75473]]

the statutory authority of the 1984 Act. The 1984 Act defines a CMV as 
a self-propelled or towed vehicle used on the highways to transport 
persons or property in interstate commerce; and that either: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 10,001 pounds or 
greater; (2) is designed or used to transport more than 8 passengers 
(including the driver) for compensation; (3) is designed or used to 
transport more than 15 passengers, not for compensation; or (4) is 
transporting any quantity of hazardous materials requiring placards to 
be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating 
CMVs are subject to the FMCSRs, except those who are employed by 
Federal, State, or local governments (49 U.S.C. 31132(2)).
    In addition to the statutory exemption for government employees, 
there are several regulatory exemptions in the FMCSRs that are 
authorized under the 1984 Act, including, among others, one for school 
bus operations and one for CMVs designed or used to transport between 9 
and 15 passengers (including the driver) not for direct compensation 
(49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only 
applies to interstate transportation of school children and/or school 
personnel between home and school. This particular exemption is not 
based on any statutory provisions, but is instead a discretionary rule 
promulgated by the Agency. Therefore, FMCSA has authority to modify the 
exemption. Modification of the school bus operations exemption requires 
the Agency to find that such action ``is necessary for public safety, 
considering all laws of the United States and States applicable to 
school buses'' (former 49 U.S.C. 31136(e)(1)).\9\ FMCSA also has 
authority to modify the non-statutory exemption for small, passenger-
carrying vehicles not for direct compensation, but is not required to 
comply with former 49 U.S.C. 31136(e) in modifying that exemption.\10\ 
FMCSA applies restrictions on hand-held mobile telephone use to both 
school bus operations by private operators in interstate commerce and 
small passenger-carrying vehicles not for direct compensation, although 
they will continue to be exempt from the rest of the FMCSRs. Other than 
transportation covered by statutory exemptions, FMCSA has authority to 
restrict the use of mobile telephones by drivers operating CMVs.
---------------------------------------------------------------------------

    \9\ Former section 31136(e)(1) was amended by section 4007(c) of 
the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 
112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 also 
provides that the amendments made by section 4007(c) ``shall not 
apply to or otherwise affect a waiver, exemption, or pilot program 
in effect on the day before the date of enactment of [TEA-21] under 
* * * section 31136(e) of title 49, United States Code.'' (Section 
4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 U.S.C. 
31136)). The exemption for school bus operations in 49 CFR 
390.3(f)(1) became effective on November 15, 1988, and was adopted 
pursuant to section 206(f) of the 1984 Act, later codified as 
section 31136(e) (Federal Motor Carrier Safety Regulations; General, 
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law 
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by 
FMCSA affecting the school bus operations exemption would require 
the Agency to comply with former section 31136(e)(1).
    \10\ The exemption in 49 CFR 390.3(f)(6) was not adopted until 
2003, after the enactment of TEA-21, in a final rule titled, 
``Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used In Interstate Commerce'' (68 FR 
47860, Aug. 12, 2003).
---------------------------------------------------------------------------

    Any violation of this restriction may result in a civil penalty 
imposed on drivers in an amount up to $2,750; a civil penalty may be 
imposed on employers, who fail to require their drivers to comply with 
FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 
386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of 
a CMV driver for violations of the Act and its regulations is also 
within the scope of the Agency's authority under the 1984 Act. Such 
disqualifications are specified by regulation for other violations (49 
CFR 391.15), and were recently adopted by the Agency in its final rule 
prohibiting texting by CMV drivers while operating in interstate 
commerce (75 FR 59118, Sept. 27, 2010; 49 CFR 392.80). In summary, both 
a restriction on the use of hand-held mobile telephones and associated 
sanctions, including civil penalties and disqualifications, are 
authorized by statute and regulation for operators of CMVs, as defined 
above, in interstate commerce, with limited exceptions. But before 
prescribing any regulations under the 1984 Act, FMCSA must consider 
their costs and benefits (49 U.S.C. 31136(c)(2)(A)). See Part V, 
Regulatory Analysis.
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 
27, 1986), which authorized creation of the CDL program, is the primary 
basis for licensing programs for certain large CMVs. There are several 
key distinctions between the authority conferred under the 1984 Act and 
that under the 1986 Act. First, the CMV for which a CDL is required is 
defined under the 1986 Act, in part, as a motor vehicle operating ``in 
commerce,'' a term separately defined to cover broadly both interstate 
commerce and operations that ``affect'' interstate commerce (49 U.S.C. 
31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle 
used in commerce to transport passengers or property that: (1) Has a 
gross vehicle weight/gross vehicle weight rating of 26,001 pounds or 
greater; (2) is designed to transport 16 or more passengers including 
the driver; or (3) is used to transport certain quantities of 
``hazardous materials,'' as defined in 49 CFR 383.5 (49 U.S.C. 
31301(4)). In addition, a provision in the FMCSRs implementing the 1986 
Act recognizes that all school bus drivers (whether government 
employees or not) and other government employees operating vehicles 
requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or 
designed to transport 16 or more passengers) are subject to the CDL 
standards set forth in 49 CFR 383.3(b).
    There are several statutory and regulatory exceptions from the CDL 
requirements, which include the following individuals: military service 
members who operate a CMV for military purposes (a mandatory exemption 
for the States to follow) (49 CFR 383.3(c)); certain farmers; 
firefighters; CMV drivers employed by a unit of local government for 
the purpose of snow/ice removal; and persons operating a CMV for 
emergency response activities (all of which are permissive exemptions 
for the States to implement at their discretion) (49 CFR 383.3(d)). 
States may also issue certain restricted CDLs to other categories of 
drivers under 49 CFR 383.3(e)-(g). Drivers with restricted CDLs based 
on State programs may still be covered by a disqualification under the 
1986 Act arising from the use of hand-held mobile telephones while 
operating CMVs.
    The 1986 Act does not expressly authorize the Agency to adopt 
regulations governing the safety of CMVs operated by drivers required 
to obtain a CDL. Most of these drivers (those involved in interstate 
trade, traffic, or transportation) are subject to safety regulations 
under the 1984 Act, as described above. The 1986 Act, however, does 
authorize disqualification of CDL drivers by the Secretary. It contains 
specific authority to disqualify CDL drivers for various types of 
offenses, whether those offenses occur in interstate or intrastate 
commerce. This authority exists even if drivers are operating a CMV 
illegally because they did not obtain a CDL.
    In general, the 1986 Act explicitly identifies several ``serious 
traffic violations'' as grounds for disqualification (49 U.S.C. 
31301(12) and 31310). In addition to the specifically enumerated 
``serious traffic violations,'' the 1986 Act provides related authority 
that allows FMCSA to

[[Page 75474]]

designate additional serious traffic violations by rulemaking if the 
underlying offense is based on the CDL driver committing a violation of 
a ``State or local law on motor vehicle traffic control'' (49 U.S.C. 
31301(12)(G)). The FMCSRs state, however, that unless and until a CDL 
driver is convicted of the requisite number of specified offenses 
within a certain time frame (described below), the required 
disqualification may not be applied (49 CFR 383.5 (defining 
``conviction'' and ``serious traffic violation'') and 383.51(c)).
    Under the statute, a driver who commits two serious traffic 
violations in a 3-year period while operating a CMV must be 
disqualified from operating a CMV that requires a CDL for at least 60 
days (49 U.S.C. 31310(e)(1)). A driver who commits three or more 
serious traffic violations in a 3-year period while operating a CMV 
must be disqualified from operating a CMV that requires a CDL for at 
least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile 
telephones results in distracted driving and increases the risk of CMV 
crashes, fatalities, and injuries, FMCSA is now requiring that 
violations by a CDL driver of a State or local law or ordinance on 
motor vehicle traffic control that restricts the use of such mobile 
telephones while driving CMVs should result in a disqualification under 
this provision.
    FMCSA is authorized to carry out these statutory provisions by 
delegation from the Secretary as provided in 49 CFR 1.73(e) and (g).
PHMSA
    PHMSA's Office of Hazardous Materials Safety is the Federal safety 
authority for the transportation of hazardous materials by air, rail, 
highway, and water. Under the Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the 
Secretary of Transportation is charged with protecting the nation 
against the risks to life, property, and the environment that are 
inherent in the commercial transportation of hazardous materials. The 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) are 
promulgated under the mandate in Section 5103(b) of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.) that the Secretary of Transportation ``prescribe regulations for 
the safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B) 
provides that the HMR ``shall govern safety aspects, including 
security, of the transportation of hazardous material the Secretary 
considers appropriate.'' As such, PHMSA strives to reduce the risks 
inherent to the transportation of hazardous materials in both 
intrastate and interstate commerce. This final rule is being issued 
under the authority in 49 CFR part 106.

III. Discussion of Comments

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

A. FMCSA Comments

Hand-Held Restriction
    Some commenters believed that restricting hand-held mobile 
telephone use by drivers operating CMVs in interstate commerce would 
impede business and require many more stops for drivers.
    FMCSA Response. Because drivers have other options available that 
do not require pulling over and stopping, FMCSA disagrees that this 
rule would impede business. Stops can be avoided by using technological 
solutions such as a hands-free mobile telephone with a speaker phone 
function or a wired or wireless earphone. Most mobile telephones have a 
speaker phone function and one-touch dialing and thus would be 
compliant with this rule. Additionally, the Agency estimated the 
minimum cost of upgrading from a non-compliant mobile telephone to a 
compliant one to be as low as $29.99.\11\ Therefore, abiding by the 
final rule will not create a burden on, or hardship for, CMV drivers.
---------------------------------------------------------------------------

    \11\ Upgrading is defined as the purchase of a mobile telephone 
that has voice dialing and speaker phone capabilities. The average 
cost of the least costly compliant phone is $29.99 (with a 2-year 
contract). See the Regulatory Evaluation accompanying this final 
rule for a full explanation of this cost.
---------------------------------------------------------------------------

Complete Mobile Telephone Ban
    A few commenters, including First Group America \12\ and the 
Advocates for Highway and Auto Safety (Advocates), thought the Agency 
should ban both hand-held and hands-free mobile telephone use.
---------------------------------------------------------------------------

    \12\ A North American surface transportation provider that 
includes school bus and transit services, as well as Greyhound 
Lines, Inc.
---------------------------------------------------------------------------

    FMCSA Response. The Agency does not believe sufficient data exist 
to justify a ban of both hand-held and hands-free use of mobile 
telephones by drivers operating CMVs in interstate commerce. Based on 
available studies, FMCSA proposed restricting only hand-held mobile 
telephone use by CMV drivers. While some driving simulator-based 
studies found conversation to be risky, the Olson, et al. (2009) and 
Hickman, et al. (2010) studies found that ``talking or listening to a 
hands-free phone'' and ``talking or listening to a hand-held phone'' 
were relatively low-risk activities and had only brief periods when the 
drivers' eyes were off the forward roadway. It is not clear from 
available studies if simply talking on a mobile telephone while driving 
presents a significant risk. The use of a cell phone, however, involves 
a variety of sub-tasks, some increasing and some decreasing the odds of 
involvement in a safety-critical event. The Hickman, et al. (2010) 
study showed that reaching for a cell phone while driving increased 
these odds by 3.7 times. Dialing a cell phone while driving increased 
the odds by 3.5 times. Reaching for a headset/earpiece while driving 
increased the odds by 3.4 times. Talking or listening on a hands-free 
cell phone while driving decreased the odds by .7 times (i.e., 
protective effect). Talking/listening on a hand-held cell phone (odds 
ratios = .9) had a non-significant odds ratio (i.e., no increase or 
decrease in risk).
    Although talking on the cell phone did not show an increased risk, 
a driver must take several risk-increasing steps, such as reaching for 
and dialing the cell phone, in order to use the electronic device for 
conversation. Based on these studies, FMCSA determined that it is the 
action of taking one's eyes off the

[[Page 75475]]

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

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

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

[[Page 75476]]

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

[[Page 75477]]

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

[[Page 75478]]

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

[[Page 75479]]

policies that direct drivers to restrict their use of cellular phones 
to emergency and security purposes only.
    FMCSA Response. The Agency agrees with the UMA and the many 
companies whose cell-phone policies continue to allow the use of mobile 
telephones to contact law enforcement in cases of emergency and for 
security purposes. The Agency, however, did not propose to prohibit CMV 
drivers from placing emergency calls. In the NPRM, the Agency said in 
Sec.  392.82: ``Emergencies. Using a hand-held mobile telephone is 
permissible by drivers of a CMV when necessary to communicate with law 
enforcement officials or other emergency services'' (75 FR 80033, Dec. 
21, 2010). This final rule allows a CMV driver to use either a hand-
held or hands-free mobile telephone to contact law enforcement or other 
emergency services for such purpos