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

Agencies

• Federal Motor Carrier Safety Administration
• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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 https://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 https://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.
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    \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.
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    \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: 
https://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
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    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.
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    \5\ The concept of ``holding'' is included in our definition of 
``use a hand-held mobile telephone.''
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    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 https://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.
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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.
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    \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: https://www.dot.gov/affairs/2009/dot15609.htm.
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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.
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    \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).
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    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.
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    \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.
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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.
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    \12\ A North American surface transportation provider that 
includes school bus and transit services, as well as Greyhound 
Lines, Inc.
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    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