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FMCSA Ruling on Texting

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					                                                59118                Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                rerouted under paragraph (b)(2) of this                                       (c) If a track segment qualifies for             under State or local traffic laws or
                                                section, the railroad shall also establish                                 removal from the PTCIP under                        ordinances that prohibit texting by CDL
                                                that the remaining risk arising from rail                                  paragraphs (b)(1) and (b)(2) of this                drivers while operating a CMV,
                                                operations on the track segment—                                           section but does not meet the test of               including school bus drivers. Recent
                                                pertaining to events that can be                                           paragraph (b)(3) of this section, the               research commissioned by FMCSA
                                                prevented or mitigated in severity by a                                    railroad may nevertheless request that              shows that the odds of being involved
                                                PTC system—is less than the average                                        the PTCIP be amended to remove the                  in a safety-critical event (e.g., crash,
                                                equivalent risk per route mile on track                                    track segment based upon compensating               near-crash, unintentional lane
                                                segments required to be equipped with                                      reductions in the risk related to PTC-              deviation) is 23.2 times greater for CMV
                                                PTC because of annual gross tonnage                                        preventable accidents based on                      drivers who engage in texting while
                                                and the presence of PIH materials traffic                                  installation of PTC technology on one or            driving than for those who do not. This
                                                (excluding track segments also carrying                                    more track segments not otherwise                   rulemaking increases safety on the
                                                passenger traffic). Such average                                           required to be equipped. Upon a proper              Nation’s highways by reducing the
                                                equivalent risk shall be determined as of                                  showing that the increment of risk                  prevalence of or preventing certain
                                                a time prior to installation of PTC on the                                 reduction is at least as great on the               truck- and bus-related crashes, fatalities,
                                                line segments. This provision of the rule                                  substitute line as it would be on the line          and injuries associated with distracted
                                                requires a future rulemaking to finalize                                   sought to be excluded from the PTCIP,               driving.
                                                and implement a risk evaluation                                            FRA may approve the substitution.
                                                                                                                                                                               DATES:The final rule is effective
                                                methodology. Lines identified for                                            Issued in Washington, DC, on September
                                                                                                                                                                               October 27, 2010.
                                                removal subject to this provision will                                     15, 2010.
                                                not be required to be equipped with                                        Joseph C. Szabo,                                    ADDRESSES:   For access to the docket to
                                                PTC prior to the issuance of a final rule                                  Administrator.                                      read background documents, including
                                                detailing the methodology.                                                 [FR Doc. 2010–24102 Filed 9–24–10; 8:45 am]         those referenced in this document, or to
                                                                                                                                                                               read comments received, go to http://
                                                   (i) FRA will develop a risk evaluation                                  BILLING CODE 4910–06–P
                                                                                                                                                                               www.regulations.gov at any time and
                                                methodology for the purpose of
                                                                                                                                                                               insert FMCSA–2009–0370 in the
                                                conducting the analysis required
                                                                                                                           DEPARTMENT OF TRANSPORTATION                        ‘‘Keyword’’ box, and then click ‘‘Search.’’
                                                pursuant to paragraph (b)(3) of this
                                                                                                                                                                               You may also view the docket online by
                                                section. The risk evaluation                                               Federal Motor Carrier Safety                        visiting the Docket Management Facility
                                                methodology will be finalized through a                                    Administration                                      in Room W12–140, DOT Building, 1200
                                                separate rulemaking proceeding that
                                                                                                                                                                               New Jersey Avenue, SE., Washington,
                                                will permit all interested parties to                                      49 CFR Parts 383, 384, 390, 391, and                DC, between 9 a.m. and 5 p.m. e.t.,
                                                provide input on the specific                                              392                                                 Monday through Friday, except Federal
                                                methodology and, whether that
                                                                                                                           [Docket No. FMCSA–2009–0370]                        holidays.
                                                methodology should be employed. If in
                                                the rulemaking proceeding FRA                                              RIN 2126–AB22
                                                                                                                                                                               FOR FURTHER INFORMATION CONTACT:    If
                                                determines that a risk methodology                                                                                             you have questions about this rule,
                                                should not be employed, then FRA will                                      Limiting the Use of Wireless                        contact the Federal Motor Carrier Safety
                                                amend this final rule to eliminate the                                     Communication Devices                               Administration, Vehicle and Roadside
                                                residual risk provisions.                                                                                                      Operation Division, at 202–366–1225 or
                                                                                                                           AGENCY:  Federal Motor Carrier Safety               FMCSA_MCPSV@dot.gov.
                                                   (ii) Any track segment qualifying for                                   Administration, DOT.
                                                consideration under paragraph (b)(3) of                                                                                        SUPPLEMENTARY INFORMATION:
                                                                                                                           ACTION: Final rule.
                                                this section and identified by the                                                                                             Table of Contents for Preamble
                                                railroad for requested removal from the                                    SUMMARY:   The Federal Motor Carrier
                                                PTCIP shall be considered to be                                            Safety Administration (FMCSA)                       I. Abbreviations
                                                ‘‘pending for decision’’ until such time                                   prohibits texting by commercial motor               II. Background
                                                as FRA has published the risk                                              vehicle (CMV) drivers while operating                  A. Legal Authority
                                                                                                                                                                                  B. Overview of Driver Distraction and
                                                evaluation methodology identified in                                       in interstate commerce and imposes                        Texting
                                                paragraph (b)(3)(i) of this section. If a                                  sanctions, including civil penalties and               C. Support for a Texting Prohibition
                                                final risk evaluation methodology is                                       disqualification from operating CMVs in                D. Investigations and Studies on Driver
                                                employed, the railroad may be                                              interstate commerce, for drivers who fail                 Distraction
                                                requested to provide supplemental                                          to comply with this rule. Additionally,                E. Existing Texting Prohibitions and
                                                information related to its request for                                     motor carriers are prohibited from                        Restrictions by Federal, State, and Local
                                                removal of specific lines. The railroad is                                 requiring or allowing their drivers to                    Governments
                                                not required to commence installation                                      engage in texting while driving. FMCSA              III. Discussion of Comments
                                                of PTC on any track segment ‘‘pending                                      amends its commercial driver’s license              IV. Discussion of Rule
                                                                                                                                                                               V. Regulatory Analyses
                                                for decision’’ under this paragraph, until                                 (CDL) regulations to add to the list of
                                                a final FRA determination is made.                                         disqualifying offenses a conviction                 I. Abbreviations

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



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                                                                     Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                                    59119

                                                CVSA ................................................................      Commercial Vehicle Safety Alliance.
                                                DOT ..................................................................     U.S. Department of Transportation.
                                                FARS ................................................................      Fatality Analysis Reporting System.
                                                FMCSA .............................................................        Federal Motor Carrier Safety Administration.
                                                FMCSRs ...........................................................         Federal Motor Carrier Safety Regulations.
                                                FR .....................................................................   Federal Register.
                                                FRA ...................................................................    Federal Railroad Administration.
                                                GES ..................................................................     General Estimates System.
                                                MCSAC .............................................................        Motor Carrier Safety Advisory Committee.
                                                MCSAP .............................................................        Motor Carrier Safety Assistance Program.
                                                NAICS ...............................................................      North American Industry Classification System.
                                                NCSL ................................................................      National Conference of State Legislators.
                                                NGA ..................................................................     National Governors Association.
                                                NHTSA ..............................................................       National Highway Traffic Safety Administration.
                                                NMVCCS ..........................................................          National Motor Vehicle Crash Causation Survey.
                                                NPRM ...............................................................       Notice of Proposed Rulemaking.
                                                NSC ..................................................................     National Safety Council.
                                                NTSB ................................................................      National Transportation Safety Board.
                                                OMB ..................................................................     Office of Management and Budget.
                                                OOIDA ..............................................................       Owner-Operator Independent Drivers Association, Inc.
                                                PAR ..................................................................     Population Attributable Risk.
                                                TTD ...................................................................    Transportation Trades Department, AFL–CIO.
                                                TWU ..................................................................     Transportation Workers Union of America, AFL–CIO.
                                                UMA ..................................................................     United Motorcoach Association.
                                                VTTI ..................................................................    Virginia Tech Transportation Institute.



                                                II. Background                                                             Transportation to ‘‘prescribe regulations           interstate commerce that either: (1) Has
                                                  On April 1, 2010, FMCSA published                                        on commercial motor vehicle safety.                 a gross vehicle weight/gross vehicle
                                                a notice of proposed rulemaking in the                                     The regulations shall prescribe                     weight rating of 10,001 pounds or
                                                Federal Register (75 FR 16391). FMCSA                                      minimum safety standards for                        greater; (2) is designed or used to
                                                reviewed the over 400 public comments                                      commercial motor vehicles’’ (49 U.S.C.              transport more than 8 passengers
                                                and made some changes in the final rule                                    31136(a)). Although this authority is               (including the driver) for compensation;
                                                in response. These changes are                                             very broad, the 1984 Act also includes              (3) is designed or used to transport more
                                                described in part IV, Discussion of the                                    specific requirements:                              than 15 passengers (including the
                                                Final Rule, Section-by-Section, of the                                       At a minimum, the regulations shall ensure        driver), not for compensation; or (4) is
                                                preamble.                                                                  that—(1) commercial motor vehicles are              transporting any quantity of hazardous
                                                                                                                           maintained, equipped, loaded, and operated          materials requiring placards to be
                                                A. Legal Authority                                                         safely; (2) the responsibilities imposed on
                                                                                                                                                                               displayed on the vehicle (49 U.S.C.
                                                                                                                           operators of commercial motor vehicles do
                                                   FMCSA amends the Federal Motor                                          not impair their ability to operate the             31132(1)). All employees operating
                                                Carrier Safety Regulations (FMCSRs): (1)                                   vehicles safely; (3) the physical condition of      CMVs are subject to the FMCSRs, except
                                                To prohibit texting using electronic                                       operators of commercial motor vehicles is           those who are employed by Federal,
                                                devices by certain drivers while                                           adequate to enable them to operate the              State, or local governments (49 U.S.C.
                                                operating CMVs in interstate commerce;                                     vehicles safely; and (4) the operation of           31132(2)).
                                                (2) to provide sanctions for certain                                       commercial motor vehicles does not have a
                                                drivers convicted of texting while                                         deleterious effect on the physical condition           In addition to the statutory exemption
                                                operating a CMV in interstate                                              of the operators. Id.                               of government employees, there are
                                                commerce, including civil penalties                                           This rule is based primarily on 49               several other regulatory exemptions in
                                                and/or disqualification from driving                                       U.S.C. 31136(a)(1), which requires                  the FMCSRs that are authorized under
                                                CMVs, as defined in 49 CFR 390.5, for                                      regulations that ensure that CMVs are               the 1984 Act, including, among others,
                                                a specified period of time; and (3) to                                     operated safely, and secondarily on                 one for school bus operations and one
                                                provide sanctions for CDL drivers                                          section 31136(a)(2), to the extent that             for CMVs designed or used to transport
                                                convicted of violating a State or local                                    drivers’ texting activities might impact            between 9 and 15 passengers (including
                                                traffic law or ordinance prohibiting                                       their ability to operate CMVs safely. The           the driver), not for direct compensation
                                                texting while operating a CMV,                                             changes improve the safety of drivers               (49 CFR 390.3(f)(1) and (3)—(7)). The
                                                specifically, a disqualification for a                                     operating CMVs. This rule does not                  school bus operations exemption only
                                                specified period of time from operating                                    address the physical condition of                   applies to interstate transportation of
                                                any CMV. The authority for this rule                                       drivers (49 U.S.C. 31136(a)(3)), nor does           school children and/or school personnel
                                                derives from the Motor Carrier Safety                                      it impact possible physical effects                 between home and school. This
                                                Act of 1984 (Pub. L. 98–554, Title II, 98                                  caused by driving CMVs (49 U.S.C.                   exemption is not based on any statutory
                                                Stat. 2832, Oct. 30, 1984), 49 U.S.C.                                      31136(a)(4)).                                       provisions, but is instead a discretionary
                                                chapter 311 (1984 Act), and the                                               The applicability to CMV drivers of              rule promulgated by the Agency.
                                                Commercial Motor Vehicle Safety Act of                                     the relevant provisions of the FMCSRs               Therefore, FMCSA has authority to
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                                                1986 (Title XII of Pub. L. 99–570, 100                                     (49 CFR subtitle B, chapter III,                    modify the exemption. Modification of
                                                Stat. 3207–170, Oct. 27, 1986), 49 U.S.C.                                  subchapter B), is governed by whether               the school bus operations exemption
                                                chapter 313 (1986 Act).                                                    the drivers involved are employees                  requires the Agency to find that such
                                                   The 1984 Act provides authority to                                      operating a CMV. The 1984 Act defines               action ‘‘is necessary for public safety,
                                                regulate the safety of operations of CMV                                   a CMV as a self-propelled or towed
                                                                                                                                                                               considering all laws of the United States
                                                drivers and motor carriers and vehicle                                     vehicle used on the highways to
                                                                                                                                                                               and States applicable to school buses’’
                                                equipment. It requires the Secretary of                                    transport persons or property in


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                                                59120            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                (former 49 U.S.C. 31136(e)(1)).1                        vehicle operating ‘‘in commerce,’’ a term             The FMCSRs state, however, that unless
                                                Likewise, FMCSA has authority to                        separately defined to cover broadly both              and until a CDL driver is convicted of
                                                modify the non-statutory exemption for                  interstate commerce and operations that               the requisite number of specified
                                                small passenger-carrying CMVs not for                   ‘‘affect’’ interstate commerce (49 U.S.C.             offenses within a certain time frame
                                                direct compensation; however, FMCSA                     31301(2), (4)). Also under the 1986 Act,              (described below), the required
                                                is not required to make a finding that                  a CMV means a motor vehicle used in                   disqualification may not be applied (49
                                                such action is ‘‘necessary for public                   commerce to transport passengers or                   CFR 383.5 (defining ‘‘conviction’’ and
                                                safety.’’ 2 Other than transportation                   property that: (1) Has a gross vehicle                ‘‘serious traffic violation’’) and
                                                covered by statutory exemptions,                        weight/gross vehicle weight rating of                 § 383.51(c)).
                                                FMCSA has authority to prohibit texting                 26,000 pounds or greater; (2) is designed                Under the statute, a driver who, in a
                                                by drivers operating CMVs, as defined                   to transport 16 or more passengers                    3-year period, commits 2 serious traffic
                                                above.                                                  including the driver; or (3) is used to               violations involving a CMV operated by
                                                   For any violations by CMV drivers or                 transport certain quantities of                       the individual must be disqualified from
                                                employers of the requirements adopted                   ‘‘hazardous materials,’’ as defined in 49             operating a CMV for at least 60 days. A
                                                in this final rule, civil penalties may be              CFR 383.5 (49 U.S.C. 31301(4)). In                    driver who, in a 3-year period, commits
                                                imposed on drivers, in an amount up to                  addition, a provision in the FMCSRs                   3 or more serious traffic violations
                                                $2,750, and on employers, in an amount                  implementing the 1986 Act recognizes                  involving a CMV operated by the
                                                up to $11,000 (49 U.S.C. 521(b)(2)(A), 49               that all school bus drivers (whether                  individual must be disqualified from
                                                CFR 386.81 and Appendix B,                              government employees or not) and other                operating a CMV for at least 120 days
                                                paragraphs (a)(3) and (4)).                             government employees operating                        (49 U.S.C. 31310(e)(1)–(2)). FMCSA
                                                Disqualification of a CMV driver for                    vehicles requiring a CDL (i.e., vehicles              determined that violations by CDL
                                                violations of the Act and its regulations               above 26,000 pounds in most States, or                drivers of State motor vehicle traffic
                                                is also within the scope of the Agency’s                designed to transport 16 or more                      control laws prohibiting texting while
                                                authority under the 1984 Act. Such                      passengers) are subject to the CDL                    driving CMVs should result in a
                                                disqualifications are specified by                      standards set forth in 49 CFR 383.3(b).               disqualification under this provision,
                                                regulation for other violations (49 CFR                    There are several statutory and                    because texting results in distracted
                                                391.15). In summary, both a texting                     regulatory exceptions from the CDL                    driving and increases the risk of CMV
                                                prohibition and associated sanctions,                   requirements, which include the                       crashes, fatalities, and injuries.
                                                including civil penalties and                           following individuals: active duty                    Consequently, under its statutory
                                                disqualifications, are authorized by                    military service members who operate a                authority to find that the violation of a
                                                statute and regulation for operators of                 CMV for military purposes (a mandatory                State texting law constitutes a serious
                                                CMVs, as defined above, in interstate                   exemption for the States to follow) (49               traffic violation for CMV drivers,
                                                commerce, with limited exceptions.                      CFR 383.3(c)), farmers, firefighters, CMV             FMCSA may exercise its rulemaking
                                                However, before prescribing any                         drivers employed by a unit of local                   authority to address this major safety
                                                regulations under the 1984 Act, FMCSA                   government for the purpose of snow/ice                risk by requiring the States to disqualify
                                                must consider their costs and benefits                  removal, and persons operating a CMV                  CDL drivers who violate such laws.
                                                (49 U.S.C. 31136(c)(2)(A)).                             for emergency response activities (all of                FMCSA is authorized to carry out
                                                   The 1986 Act, which authorized                       which are permissive exemptions for                   these statutory provisions by delegation
                                                creation of the CDL program, is the basis               the States to implement at their                      from the Secretary of Transportation as
                                                for State licensing programs for certain                discretion) (49 CFR 383.3(d)). Certain                provided in 49 CFR 1.73(e) and (g).
                                                large CMVs. There are several key                       other drivers could be issued restricted              B. Overview of Driver Distraction and
                                                distinctions between the authority                      CDLs under 49 CFR 383.3(e)–(g), such                  Texting
                                                conferred under the 1984 Act and that                   drivers may be covered by a texting
                                                under the 1986 Act. First, the CMV for                  disqualification under the 1986 Act.                     This rulemaking addresses one type of
                                                which a CDL is required is defined                         The 1986 Act does not expressly                    driver distraction. Driver distraction can
                                                under the 1986 Act, in part, as a motor                 authorize the Agency to adopt                         be defined as the voluntary or
                                                                                                        regulations governing the safety of                   involuntary diversion of attention from
                                                   1 Former section 31136(e)(1) was amended by          operations of CMVs by drivers required                the primary driving tasks due to an
                                                section 4007(c) of the Transportation Equity Act for    to obtain a CDL. Most of these drivers                object, event, or person that shifts the
                                                the 21st Century, Public Law 105–178, 112 Stat.                                                               attention away from the fundamental
                                                107, 403 (June 9, 1998) (TEA–21). However, TEA–
                                                                                                        are subject to safety regulations under
                                                21 also provides that the amendments made by            the 1984 Act, as described above. The                 driving task. The diversion reduces a
                                                section 4007(c) ‘‘shall not apply to or otherwise       1986 Act, however, specifically                       driver’s situational awareness, decision
                                                affect a waiver, exemption, or pilot program in         authorizes the disqualification of CDL                making, or performance; and it may
                                                effect on the day before the date of enactment of
                                                [TEA–21] under * * * section 31136(e) of title 49,
                                                                                                        drivers for various types of offenses.                result in a crash, near-crash, or
                                                United States Code.’’ Section 4007(d), TEA–21, 112      This is true even if drivers have not                 unintended lane departure by the
                                                Stat. 404 (set out as a note under 49 U.S.C. 31136).    obtained a CDL and are therefore                      driver.
                                                The exemption for school bus operations in 49 CFR       operating a CMV illegally. Related                       In an effort to understand and
                                                390.3(f)(1) became effective on November 15, 1988,                                                            mitigate crashes associated with driver
                                                and was adopted pursuant to section 206(f) of the
                                                                                                        rulemaking authority exists to include
                                                1984 Act, later codified as section 31136(e) (Federal   serious traffic violations as grounds for             distraction, the U.S. Department of
                                                Motor Carrier Safety Regulations; General, 53 FR        such disqualifications (49 U.S.C.                     Transportation (DOT) has been studying
                                                18042–18043, 18053 (May 19, 1988) and section           31301(12) and 31310).                                 the distracted driving issue with respect
                                                1(e), Pub. L. 103–272, 108 Stat 1003 (July 5, 1994)).      Further, in addition to specifically               to both behavioral and vehicle safety
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                                                Therefore, any action by FMCSA affecting the
                                                school bus operations exemption would require the       enumerated ‘‘serious traffic violations,’’            countermeasures. Researchers and
                                                Agency to comply with former section 31136(e)(1).       the 1986 Act allows FMCSA to                          writers classify distraction into various
                                                   2 The exemption in 49 CFR 390.3(f)(6) was not        designate violations by rulemaking if                 categories, depending on the nature of
                                                adopted until 2003, after the enactment of TEA–21.      the underlying offense is based on the                their work. In work involving
                                                See Safety Requirements for Operators of Small
                                                Passenger-Carrying Commercial Motor Vehicles
                                                                                                        CDL driver committing a violation of a                equipment such as vehicles, one
                                                Used In Interstate Commerce, at 68 FR 47860 (Aug.       ‘‘State or local law on motor vehicle                 distraction classification system
                                                12, 2003).                                              traffic control’’ (49 U.S.C. 31301(12)(G)).           includes three categories: visual (taking


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                                                                 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                               59121

                                                one’s eyes off the road), physical (taking              FMCSA’s Motor Carrier Safety Advisory                 They addressed the safety risk posed by
                                                one’s hands off the wheel), and                         Committee’s Recommendation                            this growing problem across all modes
                                                cognitive (thinking about something                        Section 4144 of the Safe, Accountable,             of surface transportation. At the
                                                other than the road/driving). Texting                   Flexible, Efficient Transportation Equity             conclusion of the Summit, U.S.
                                                while driving applies to these three                    Act: A Legacy for Users (SAFETEA–LU),                 Transportation Secretary Ray LaHood
                                                types of driver distraction (visual,                    Public Law 109–59, 119 Stat. 1144, 1748               announced a series of concrete actions
                                                physical, and cognitive), and thus may                  (Aug. 10, 2005), required the Secretary               that the Obama Administration and
                                                pose a considerably higher safety risk                  of Transportation to establish a Motor                DOT are taking to address distracted
                                                than other sources of driver distraction.               Carrier Safety Advisory Committee                     driving. On October 1, 2009, the
                                                                                                        (MCSAC). The committee provides                       President issued Executive Order 13513
                                                Prevalence of Texting                                   advice and recommendations to the                     entitled ‘‘Federal Leadership on
                                                   Texting while driving is a relatively                FMCSA Administrator on motor carrier                  Reducing Text Messaging While
                                                new phenomenon among cell phone                         safety programs and regulations and                   Driving’’ (74 FR 51225; October 6, 2009),
                                                                                                        operates in accordance with the Federal               which prohibited texting by Federal
                                                and personal digital assistant (PDA)
                                                                                                        Advisory Committee Act (5 U.S.C. App.                 employees (details are discussed later in
                                                users. DOT acknowledges that the                        2).
                                                potential for the problem is increasing,                                                                      this preamble).
                                                                                                           In its March 27, 2009, report to
                                                especially with young drivers on our                    FMCSA, ‘‘Developing a National Agenda                   Actions following the Summit
                                                roadways, as noted in a Pew Research                    for Motor Carrier Safety,’’ MCSAC                     included DOT’s plan to immediately
                                                Center Report, ‘‘Teens and Distracted                   recommended that FMCSA adopt new                      start rulemakings that would ban texting
                                                Driving.’’ 3 According to the CTIA—The                  Federal rules concerning distracted                   and restrict, to the extent possible, the
                                                Wireless Association, the overall                       driving, including texting.4 MCSAC                    use of cell phones by truck and
                                                number of text messages transmitted by                  believed the available research shows                 interstate bus operators, as well as to
                                                its members’ customers increased from                   that cognitive distractions pose a safety             initiate rulemaking by the Federal
                                                32.6 billion in the first 6 months of 2005              risk and that there will be increases in              Railroad Administration (FRA) to codify
                                                to 740 billion in the first 6 months of                 crashes from cell phone use and texting               provisions of the FRA’s Emergency
                                                2009. This represents a 2,200 percent                   unless the problem is addressed.                      Order No. 26 regarding restricting
                                                increase in 5 years. While FMCSA’s                      Therefore, one of MCSAC’s                             distracting electronic devices (see
                                                research reveals significant insight into               recommendations for the National                      discussion below in Part E). As a result
                                                the safety risks associated with texting                Agenda for Motor Carrier Safety was                   of the Summit, and based on data from
                                                while driving, the Agency does not                      that FMCSA initiate a rulemaking to                   studies on distracted driving, FMCSA is
                                                have, at this time, data on the                         prohibit texting while driving.                       considering a number of actions to
                                                prevalence of texting by motorists in                                                                         combat distracted driving by CMV
                                                                                                        Distracted Driving Summit
                                                general or CMV drivers specifically.                                                                          drivers.
                                                                                                           The information and feedback DOT
                                                Considering the increase in texting,                    received during its Distracted Driving                General Public
                                                FMCSA maintains that texting by CMV                     Summit, held September 30–October 1,
                                                drivers while operating on public roads                                                                         Several surveys show that there is
                                                                                                        2009, in Washington, DC, demonstrated
                                                has the potential of becoming a                         both a need and widespread support for                public support for a texting prohibition.
                                                widespread safety problem in the                        a ban against texting while driving.                  For example, a survey in December 2008
                                                absence of an explicit Federal                          Attendees included safety experts;                    by the AAA Foundation for Traffic
                                                prohibition. FMCSA prohibits this                       researchers; elected officials, including             Safety determined that 94.1 percent of
                                                inherently unsafe practice to reduce the                four United States Senators and several               drivers consider it unacceptable for a
                                                risks of crashes, injuries, and fatalities.             State legislators; safety advocacy groups;            driver to send text messages or e-mail
                                                                                                        senior law enforcement officials; the                 while driving; 86.7 percent consider text
                                                C. Support for a Texting Prohibition                    telecommunications industry; and the                  messaging and e-mailing by drivers to
                                                                                                        transportation industry. At the                       be a very serious threat to their personal
                                                   Based on the response to the                                                                               safety.6 A CBS News/New York Times
                                                Distracted Driving Summit, the                          conclusion of the Summit, Secretary
                                                                                                        LaHood stated, ‘‘Keeping Americans safe               poll reported that 90 percent of
                                                Secretary’s appearances on national                                                                           Americans think texting behind the
                                                television and this rulemaking, FMCSA                   is without question the Federal
                                                                                                        government’s highest priority—and that                wheel should be outlawed. Over 94
                                                determined there is a considerable                                                                            percent of those who admit to texting or
                                                                                                        includes safety on the road, as well as
                                                amount of public support for a ban on                                                                         e-mailing while driving acknowledge
                                                                                                        on mass transit and rail.’’ 5 In addition,
                                                texting while operating a motor vehicle.                                                                      that it makes them at least a little bit
                                                                                                        the Secretary pledged to work with
                                                It is likely that most Americans either                 Congress to ensure that the issue of                  more likely to be involved in a crash.7
                                                had firsthand experience with or know                   distracted driving is appropriately                   Finally, a nationally representative
                                                someone who had a motor vehicle crash                   addressed.                                            survey by Nationwide Insurance,
                                                or near-crash event involving a                            Summit participants shared their                   conducted in August 2009, found that
                                                distracted driver. With the                             expertise, experiences, and ideas for                 80 percent of Americans support laws
                                                exponentially increasing use of                         reducing distracted driving behaviors.
                                                electronic devices, numerous crashes,                                                                           6 AAA Foundation for Traffic Safety (October 12,

                                                and other incidents related to distracted
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                                                                                                          4 Parker, David R., Chair, Motor Carrier Safety     2009). Safety culture: text messaging and cell phone
                                                driving in recent years, expedited                      Advisory Committee (March 27, 2009). Letter to        use while driving. Retrieved August 24, 2010, from:
                                                                                                        Rose A. McMurray on MCSAC national agenda for         http://www.aaafoundation.org/pdf/
                                                Federal action is required.                             motor vehicle safety. Retrieved August 24, 2010,      TextingFS091012.pdf.
                                                                                                        from: http://mcsac.fmcsa.dot.gov/documents/             7 Connelly, M. (November 1, 2009). Many in U.S.
                                                  3 Madden, M. & Lenhart, A. (November 2009).           MCSACTask09–01FinalReportandLetterto                  want texting at the wheel to be illegal.
                                                Teens and distracted driving. Pew Research              Administrator090428.pdf.                              NYTimes.com. Retrieved August 24, 2010, from:
                                                Center’s Pew Internet and American Lifer Project.         5 DOT press release 156–09, Thursday, October 1,    http://www.nytimes.com/2009/11/02/technology/
                                                Available in the docket: FMCSA–2009–0370–0004.          2009.                                                 02textingside.html.



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                                                59122            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                prohibiting text messaging or e-mailing             States that do not enact a law                               Chicago Transit Authority (CTA)
                                                while driving.8                                     prohibiting an individual from writing,                      prohibits texting by employees and
                                                                                                    sending, or reading text messages while                      discharges offenders. Furthermore,
                                                Safety Advocacy Organizations
                                                                                                    operating a motor vehicle.                                   several large transit agencies
                                                   Many safety advocacy groups have                    ATA also conducted an opinion                             (Massachusetts Bay Transportation
                                                voiced support for a prohibition on                 survey of its safety committees on the                       Authority, CTA, and Greater Cleveland
                                                texting while driving. In January 2009,             use of ‘‘non-integrated electronic                           Region Transit Authority) have
                                                the National Safety Council (NSC)                   devices’’ and found that many motor                          prohibited operators from carrying cell
                                                called for a nationwide prohibition on              carriers do not allow drivers to operate                     phones or other electronic devices in
                                                all cell phone use while driving.9 NSC              any electronic devices at all while the                      the cab, presumably prohibiting texting.
                                                is focused on alerting the American                 vehicle is moving, including
                                                public to the fact that different                   dispatching equipment. From the                              D. Investigations and Studies on Driver
                                                distractions have different levels of               responses of these industry leaders,                         Distraction
                                                crash risk. NSC stated that sending text            ATA found that 67 percent of                                    On November 14, 2004, a motorcoach
                                                messages has a much higher risk than                respondents had a policy restricting or                      crashed into a bridge overpass on the
                                                most other actions that drivers take                limiting the use of portable electronic                      George Washington Memorial Parkway
                                                while driving. Additionally, Advocates              devices while driving. United Parcel                         in Alexandria, Virginia. This crash was
                                                for Highway and Auto Safety                         Service, Inc. has an existing policy of no                   the impetus for a National
                                                (Advocates) applauded DOT’s effort to               distractions while behind the wheel                          Transportation Safety Board (NTSB)
                                                ban texting by truck and motor coach                (e.g., two hands on the wheel and no                         investigation and subsequent
                                                drivers.10                                          two-way communication) and FedEx                             recommendation (Safety
                                                                                                    does not allow drivers to use any                            Recommendation H–06–27) to FMCSA
                                                Transportation Industry Associations                electronic device while operating FedEx                      regarding cell phone use by passenger-
                                                   The American Trucking Associations               vehicles.13 Additionally, ExxonMobil                         carrying CMVs. The NTSB determined
                                                (ATA) believe that the use of hand-held and Shell are examples of large                                          that one probable cause of the crash was
                                                electronic devices and the act of texting companies that prohibit employees’ use                                 the use of a hands-free cell phone,
                                                with such devices while a motor vehicle of any type of cell phone while driving                                  resulting in cognitive distraction;
                                                is in motion should be prohibited.11 In             during work hours.14 Because numerous                        therefore, the driver did not ‘‘see’’ the
                                                2009, ATA’s executive committee voted large commercial trucking operations                                       low bridge warning signs.
                                                overwhelmingly to support S.1536, the               already have policies that prohibit the                         In a letter to NTSB dated March 5,
                                                ‘‘Avoiding Life-Endangering and                     use of electronic devices while driving,                     2007, the Agency agreed to initiate a
                                                Reckless Texting by Drivers Act of 2009 which would presumably include                                           study to assess:
                                                (the ‘‘ALERT Drivers Act’’) a pending bill texting, a prohibition on texting is not                                 • The potential safety benefits of
                                                introduced by Senator Schumer on July               expected to have an adverse impact on                        restricting cell phone use by drivers of
                                                29, 2009, that seeks to prohibit texting            a majority of trucking fleets.                               passenger-carrying CMVs,
                                                while driving by all motorists.12 The               School Bus Operations                                           • The applicability of an NTSB
                                                ALERT Drivers Act also amends title 23,                                                                          recommendation to property-carrying
                                                of the U.S. Code, to reduce the amount                 School bus operations have been the                       CMV drivers,
                                                of Federal highway funding available to focus of distracted driving policies;                                       • Whether adequate data existed to
                                                                                                    many cities, towns, and counties                             warrant a rulemaking, and
                                                  8 Gillespie, C. (August 31, 2009). New Nationwide prohibit cell phone use or texting by                           • The availability of statistically
                                                Insurance survey shows overwhelming support for     school bus operators. The National                           meaningful data regarding cell phone
                                                laws banning texting while driving: Data suggests   Association of State Directors of Pupil
                                                legislation alone will not solve the problem.                                                                    distraction. Subsequently, the report
                                                                                                    Transportation Services, in a letter to                      ‘‘Driver Distraction in Commercial
                                                Nationwide.com. Retrieved January 11, 2010, from:
                                                http://www.nationwide.com/newsroom/twd-survey-      the U.S. Senate dated August 7, 2009,                        Vehicle Operations’’ was published on
                                                results.jsp.                                        stated that it supports the ALERT                            October 1, 2009.
                                                  9 National Safety Council, (n.d.). Distracted     Drivers Act (S. 1536).15
                                                driving. Retrieved August 24, 2010, from: http://                                                                Driver Distraction in Commercial
                                                www.nsc.org/safety_road/Distracted_Driving/Pages/        Transit Agencies                                        Vehicle Operations (‘‘the VTTI
                                                distracted_driving.aspx.
                                                   10 Gillan, J.S. (October 1, 2009). Safety Advocates
                                                                                                           The importance of the distracted                      Study’’)—Olson et al., 200916
                                                respond to U.S. DOT Secretary’s announcement on          driving issue has led virtually all transit
                                                                                                                                                                   Under contract with FMCSA, the
                                                measures to reduce distracted driving by                 agencies to ban the use of cell phones
                                                                                                                                                                 Virginia Tech Transportation Institute
                                                commercial operators. Retrieved August 24, 2010,         and electronic devices or specifically to
                                                from the Advocates for Highway and Auto Safety                                                                   (VTTI) completed its ‘‘Driver Distraction
                                                                                                         ban texting while operating a vehicle in
                                                Web site: http://www.saferoads.org/files/file/                                                                   in Commercial Vehicle Operations’’
                                                Distracted%20Driving%20Statement%20by                    passenger service. For example, the
                                                                                                                                                                 study 17 and released the final report on
                                                %20Judith%20Stone%20October
                                                %201,%202009.pdf.                                           13 Halsey, A. (October 2, 2009). Obama Bans
                                                                                                                                                                 October 1, 2009. The purpose of the
                                                   11 American Trucking Associations (October 29,        Federal Employees From Texting While Driving.           study was to investigate the prevalence
                                                2009). Addressing the problem of distracted              Washingtonpost.com. Retrieved August 24, 2010,
                                                driving. Written testimony to the Subcommittee on        from: http://www.washingtonpost.com/wp-dyn/               16 Olson, R. L., Hanowski, R.J., Hickman, J.S., &

                                                Highways and Transit, U.S. House of                      content/article/2009/10/01/                             Bocanegra, J. (2009) Driver distraction in
                                                Representatives’ Transportation and Infrastructure       AR2009100103447_pf.html.                                commercial vehicle operations. (Document No.
                                                Committee. Retrieved August 24, 2010, from:                 14 Insurance Information Institute (December         FMCSA–RRR–09–042) Washington, DC: Federal
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                                                http://www.truckline.com/Newsroom/Testimony1/            2009). Cellphones and driving. Retrieved August         Motor Carrier Safety Administration, July 2009.
                                                Randy%20Mullett%20—%20Distracted%20Driving               24, 2010, from: http://www.iii.org/IU/Cellphone-        Available in the docket: FMCSA–2009–0370–0005.
                                                %20testimony.pdf.                                        and-driving/.                                             17 The formal peer review of the ‘‘Driver
                                                   12 American Trucking Associations (October 14,           15 Hood, C., President of the National Association   Distraction in Commercial Vehicle Operations Draft
                                                2009). ATA leaders vote overwhelmingly to support        of State Directors of Pupil Transportation Services     Final Report’’ was completed by a team of three
                                                anti-texting bill. Retrieved August 24, 2010, from:      (August 7, 2009). Letter to Senators Schumer,           technically qualified peer reviewers who are
                                                http://www.truckline.com/pages/article.aspx?             Menendez, Hagan and Landrieu. Retrieved August          qualified (via their experience and educational
                                                id=52%2F0599B3C5-1DA2-463F-8FE5-                         24, 2010, from: http://www.nasdpts.org/documents/       background) to critically review driver distraction-
                                                AF9814303C64.                                            alert_act-nasdpts-support.pdf.                          related research.



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                                                                     Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                                                                   59123

                                                of driver distraction in CMV safety-                                       and odds ratios of less than ‘‘1.0’’                                        with technology: Calculator (4.4
                                                critical events (i.e., crashes, near-                                      indicated a safety-critical event was less                                  seconds), dispatching device (4.1
                                                crashes, lane departures, as explained in                                  likely to occur. The most risky behavior                                    seconds), and cell phone dialing (3.8
                                                the VTTI study) recorded in a                                              identified by the research was ‘‘text                                       seconds). Technology-related tasks were
                                                naturalistic data set that included over                                   message on cell phone,’’ 18 with an odds                                    not the only ones with high visual
                                                200 truck drivers and 3 million miles of                                   ratio of 23.2. This means that the odds                                     demands. Non-technology tasks with
                                                data. The dataset was obtained by                                          of being involved in a safety-critical                                      high visual demands, including some
                                                placing monitoring instruments on                                          event are 23.2 times greater for drivers                                    common activities, were: reading (4.3
                                                vehicles and recording the behavior of                                     who text message while driving than for                                     seconds), writing (4.2 seconds), looking
                                                drivers conducting real-world revenue-                                     those who do not.                                                           at a map (3.9 seconds), and reaching for
                                                producing operations. The study found                                         Texting drivers took their eyes off the                                  an object (2.9 seconds).
                                                that drivers were engaged in non-                                          forward roadway for an average of 4.6
                                                driving related tasks in 71 percent of                                     seconds during the 6-second interval                                           The study further analyzed
                                                crashes, 46 percent of near-crashes, and                                   surrounding a safety-critical event. At                                     population attributable risk (PAR),
                                                60 percent of all safety-critical events.                                  55 mph (or 80.7 feet per second), this                                      which incorporates the frequency of
                                                Tasks that significantly increased risk                                    equates to a driver traveling 371 feet, the                                 engaging in a task. If a task is done more
                                                included texting, looking at a map,                                        approximate length of a football field,                                     frequently by a driver or a group of
                                                writing on a notepad, or reading.                                          including the end zones, without                                            drivers, it will have a greater PAR
                                                  Odds ratios (OR) were calculated to                                      looking at the roadway. At 65 mph (or                                       percentage. Safety could be improved
                                                identify tasks that were high risk. For a                                  95.3 feet per second), the driver would                                     the most if a driver or group of drivers
                                                given task, an odds ratio of ‘‘1.0’’                                       have traveled approximately 439 feet                                        were to stop performing a task with a
                                                indicated the task or activity was                                         without looking at the roadway. This                                        high PAR. The PAR percentage for
                                                equally likely to result in a safety-                                      clearly creates a significant risk to the                                   texting is 0.7 percent, which means that
                                                critical event as it was a non-event or                                    safe operation of the CMV.                                                  0.7 percent of the incidence of safety-
                                                baseline driving scenario. An odds ratio                                      Other tasks that drew drivers’ eyes                                      critical events is attributable to texting,
                                                greater than ‘‘1.0’’ indicated a safety-                                   away from the forward roadway in the                                        and thus, could be avoided by not
                                                critical event was more likely to occur,                                   study involved the driver interacting                                       texting.

                                                                       TABLE 1—ODDS RATIO AND POPULATION ATTRIBUTABLE RISK PERCENTAGE BY SELECTED TASK
                                                                                                                                                                                                                                             Population
                                                                                                                                                                                                                                            attributable
                                                                                                                                 Task                                                                                        Odds ratio          risk
                                                                                                                                                                                                                                            percentage*

                                                Complex Tertiary** Task:
                                                   Text message on cell phone ............................................................................................................................                           23.2             0.7
                                                   Other—Complex (e.g., clean side mirror) ........................................................................................................                                  10.1             0.2
                                                   Interact with/look at dispatching device ...........................................................................................................                               9.9             3.1
                                                   Write on pad, notebook, etc. ............................................................................................................................                          9.0             0.6
                                                   Use calculator ...................................................................................................................................................                 8.2             0.2
                                                   Look at map ......................................................................................................................................................                 7.0             1.1
                                                   Dial cell phone ..................................................................................................................................................                 5.9             2.5
                                                   Read book, newspaper, paperwork, etc. .........................................................................................................                                    4.0             1.7
                                                Moderate Tertiary** Task:
                                                   Use/reach for other electronic device ..............................................................................................................                               6.7             0.2
                                                   Other—Moderate (e.g., open medicine bottle) .................................................................................................                                      5.9             0.3
                                                   Personal grooming ...........................................................................................................................................                      4.5             0.2
                                                   Reach for object in vehicle ...............................................................................................................................                        3.1             7.6
                                                   Look back in sleeper berth ...............................................................................................................................                         2.3             0.2
                                                   Talk or listen to hand-held phone ....................................................................................................................                             1.0             0.2
                                                   Eating ................................................................................................................................................................            1.0               0
                                                   Talk or listen to CB radio .................................................................................................................................                       0.6               *
                                                   Talk or listen to hand-free phone .....................................................................................................................                            0.4               *
                                                   * Calculated for tasks where the odds ratio is greater than one.
                                                   ** Non-driving related tasks.


                                                  A complete copy of the final report for                                  texting is extremely risky and that it                                      the data used were collected
                                                this study is included in the docket                                       impairs a driver’s ability to respond to                                    naturalistically, and not in a controlled
                                                referenced at the beginning of this                                        driving situations. Most of these studies                                   environment; the ‘‘cognitive distraction’’
                                                rulemaking notice.                                                         were small simulator studies, involving                                     effects of driver behaviors could not
                                                  In addition to FMCSA-sponsored                                           young automobile drivers. However,                                          easily be determined. This information,
                                                research, the Agency considered other                                      they provide support for the                                                which includes ongoing research, is
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                                                research reports and studies that                                          conclusions of the comprehensive study                                      summarized below.
                                                highlight the safety risks of distracted                                   of CMV operations commissioned by
                                                driving, in general, or of texting,                                        FMCSA and conducted by VTTI. One
                                                specifically. These studies conclude that                                  limitation of the VTTI study was that

                                                  18 Although the final report does not elaborate on                       preparation, and transmission of typed messages via
                                                texting, the drivers were engaged in the review,                           wireless phones.



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                                                59124            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                Text Messaging During Simulated                           The Effects of Text Messaging on Young                   meters, or three car lengths, and
                                                Driving—Drews, et al., 2009 19                            Novice Driver Performance—Hosking, et                    increased variability of lane position.
                                                                                                          al., 200622
                                                  This research was designed to identify                                                                           Cell Phone Distraction in Commercial
                                                the impact of text messaging on                              Hosking studied a very different                      Trucks and Buses: Assessing Prevalence
                                                simulated driving performance. Using a                    driver population, but obtained similar                  in Conjunction With Crashes and Near-
                                                high fidelity driving simulator,                          results. This study used an advanced                     Crashes—Hickman25
                                                researchers measured the performance                      driving simulator to evaluate the effects                   The purpose of this research was to
                                                of 20 pairs of participants while: (1)                    of text messaging on 20 young, novice                    conduct an analysis of naturalistic data
                                                Only driving, and (2) driving and text                    Australian drivers. The participants                     collected by DriveCam®. The
                                                messaging. Participants followed a pace                   were between 18 and 21 years old, and                    introduction of naturalistic driving
                                                                                                          they had been driving 6 months or less.                  studies that record drivers (through
                                                car in the right lane, which braked 42
                                                                                                          Legislation in Australia prohibits hand-                 video and kinematic vehicle sensors) in
                                                times, intermittently. Participants were
                                                                                                          held phones, but a large proportion of                   actual driving situations created a
                                                0.2 seconds slower in responding to the                   the participants said that they use them                 scientific method to study driver
                                                brake onset when driving and text                         anyway.                                                  behavior under the daily pressures of
                                                messaging, compared to driving-only.                                                                               real-world driving conditions. The
                                                                                                             The young drivers took their eyes off
                                                When drivers are concentrating on                                                                                  research documented the prevalence of
                                                                                                          the road while texting, and they had a
                                                texting, either reading or entering, their                                                                         distractions while driving a CMV,
                                                                                                          harder time detecting hazards and safety
                                                reaction times to braking events are                      signs, as well as maintaining the                        including both trucks and buses, using
                                                significantly longer.                                     simulated vehicle’s position on the road                 an existing naturalistic data set. This
                                                Driver Workload Effects of Cell Phone,                    than they did when not texting. While                    data set came from 183 truck and bus
                                                Music Player, and Text Messaging Tasks                    the participants did not reduce their                    fleets comprising a total of 13,306
                                                                                                          speed, they did try to compensate for                    vehicles captured during a 90-day
                                                With the Ford SYNC Voice Interface
                                                                                                          the distraction of texting by increasing                 period. There were 8,509 buses and
                                                Versus Handheld Visual-Manual
                                                                                                          their following distance. Nonetheless,                   4,797 trucks. The data sets in the
                                                Interfaces (‘‘The Ford Study’’)—Shutko,                                                                            current study did not include
                                                et al., 2009 20                                           retrieving and particularly sending text
                                                                                                          messages had the following effects on                    continuous data; it only included
                                                  A recent study by Ford Motor                            driving:                                                 recorded events that met or exceeded a
                                                                                                                                                                   kinematic threshold (a minimum g-force
                                                Company,21 involving 25 participants,                        • Difficulty maintaining the vehicle’s
                                                                                                                                                                   setting that triggers the event recorder).
                                                compared using a hands-free voice                         lateral position on the road.
                                                                                                                                                                   These recorded events included safety-
                                                interface to complete a task while                           • Harder time detecting hazards.                      critical events (e.g., hard braking in
                                                driving with using personal handheld                         • Harder time detecting and                           response to another vehicle) and
                                                devices (cell phone and music player) to                  responding to safety signs.                              baseline events (i.e., an event that was
                                                complete the same task while driving.
                                                                                                             • Up to 400 percent more time with                    not related to a safety-critical event,
                                                Of particular interest were the results of                drivers’ eyes off the road than when not                 such as a vehicle that traveled over train
                                                this study with regard to total eyes-off-                 texting.                                                 tracks and exceeded the kinematic
                                                road time when texting while driving.                                                                              threshold). A total of 1,085 crashes,
                                                The study found that texting, both                        The Effect of Text Messaging on Driver                   8,375 near-crashes, 30,661 crash-
                                                sending and reviewing a text, was                         Behavior: A Simulator Study — Reed                       relevant conflicts, and 211,171 baselines
                                                extremely risky. The median total eyes-                   and Robbins, 200823                                      were captured in the dataset.
                                                off-road time when reviewing a text                         The RAC Foundation commissioned                           Odds ratios were calculated to show
                                                message on a handheld cell phone while                    this report 24 to assess the impact of text              a measure of association between
                                                driving was 11 seconds. The median                        messaging on driver performance and                      involvement in a safety-critical event
                                                total eyes-off-road time when sending a                   the attitudes surrounding that activity in               and performing non-driving related
                                                text message using a handheld cell                        the 17 to 24-year old driver category.                   tasks, such as dialing or texting. The
                                                phone while driving was 20 seconds.                       There were 17 participants in the study.                 odds ratios show the odds of being
                                                                                                          The results demonstrated that driving                    involved in a safety-critical event when
                                                  19 Drews, F.A., Yazdani, H., Godfrey, C.N.,             was impaired by texting. Researchers                     a non-driving related task is present
                                                Cooper, J.M., & Strayer, D.L. (Dec. 16, 2009). Text       reported that ‘‘failure to detect hazards,               compared to situations when there is no
                                                messaging during simulated driving. Salt Lake City,       increased response times to hazards,                     non-driving related task. The odds ratios
                                                Utah: The Journal of Human Factors and
                                                                                                          and exposure time to that risk have clear                for text/e-mail/accessing the Internet
                                                Ergonomics Society Online First. Published as                                                                      tasks were very high, indicating a strong
                                                doi:10.1177/0018720809353319. Available in the
                                                                                                          implications for safety.’’ They reported
                                                                                                          an increased stopping distance of 12.5                   relationship between text/e-mail/
                                                docket: FMCSA–2009–0370–0006.
                                                  20 Shutko, J., Mayer, J., Laansoo, E., & Tijerina, L.
                                                                                                                                                                   accessing the Internet while driving and
                                                (2009). Driver workload effects of cell phone, music        22 Hosking, S., Young, K., & Regan, M. (February       involvement in a safety-critical event.
                                                player, and text messaging tasks with the Ford            2006). The effects of text messaging on young            Very few instances of this behavior were
                                                SYNC voice interface versus handheld visual-              novice driver performance. Victoria, Australia:          observed during safety-critical events in
                                                manual interfaces (paper presented at SAE World           Monash University Accident Research Centre.              the current study and even fewer during
                                                Congress & Exhibition, April 2009, Detroit, MI).          Available in the docket: FMCSA–2009–0370–0008.
                                                                                                            23 Reed, N. & Robbins, R. (2008). The effect of text
                                                                                                                                                                   control events. Although truck and bus
                                                Warrendale, PA: Society of Automotive Engineers                                                                    drivers do not text frequently, the data
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                                                International. Available in the docket: FMCSA–            messaging on driver behaviour: A simulator study.
                                                                                                          Report prepared for the RAC Foundation by
                                                2009–0370–0007.
                                                                                                          Transport Research Laboratory. Available in the            25 Hickman, J., Hanowski, R., & Bocanegra, J.
                                                  21 The Engineering Meetings Board has approved
                                                                                                          docket: FMCSA–2009–0370–0009.                            (2010). Distraction in Commercial Trucks and
                                                this paper for publication. It has successfully             24 The work described in this report was carried       Buses: Assessing Prevalence and Risk in
                                                completed SAE’s peer review process under the             out in the Human Factors and Simulation group of         Conjunction with Crashes and Near-Crashes.
                                                supervision of the session organizer. This process        the Transport Research Laboratory. Andrew Parkes         Washington, DC: FMCSA, September 2010. http://
                                                requires a minimum of three (3) reviews by industry       carried out the technical review and auditing of this    www.fmcsa.dot.gov/facts-research/art-public-
                                                experts.                                                  report.                                                  reports.aspx.



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                                                                 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                        59125

                                                suggest that truck and bus drivers who                  on safe operations. These examples                     Initiative (CeRI), summarizing the
                                                use their cell phone to text, e-mail, or                included fatal accidents that involved                 points raised by participants in a pilot
                                                access the Internet are very likely to be               operators who were distracted while                    project called Regulation Room (http://
                                                involved in a safety-critical event.                    texting or talking on a cell phone. In                 www.regulationroom.com).
                                                                                                        light of these incidents, FRA is                          Most commenters supported the
                                                E. Existing Texting Prohibitions and                    imposing restrictions on the use of such               proposal because of the potential safety
                                                Restrictions by Federal, State, and Local               electronic devices, both through its                   benefits for all vehicle and pedestrian
                                                Governments                                             order and a rulemaking that seeks to                   traffic sharing the roadway with CMVs.
                                                Executive Order 13513                                   codify the order. In a notice of proposed              Commenters felt that texting while
                                                                                                        rulemaking (NPRM) published May 18,                    driving, especially while driving a CMV,
                                                  The President immediately used the
                                                                                                        2010, FRA proposed to amend its                        is dangerous and should be prohibited.
                                                feedback from the DOT Summit on                                                                                Many commenters cited crashes or near-
                                                                                                        railroad communications regulations by
                                                Distracted Driving and issued Executive                                                                        crashes with a distracted driver in
                                                                                                        restricting the use of mobile telephones
                                                Order 13513, which ordered that:                                                                               which they, or someone they knew,
                                                                                                        and other distracting electronic devices
                                                  Federal employees shall not engage in text            by railroad operating employees (75 FR                 were involved; in some cases a fatality
                                                messaging (a) when driving a Government                 27672).                                                occurred. Many commenters felt that the
                                                Owned Vehicle, or when driving a Privately                                                                     use of mobile telephones has become so
                                                Owned Vehicle while on official Government              State Restrictions                                     much a part of people’s lives that it will
                                                business, or (b) when using electronic                     Texting while driving is prohibited in
                                                equipment supplied by the Government
                                                                                                                                                               be difficult to get people to stop using
                                                while driving.
                                                                                                        30 States, the District of Columbia, the               these devices in vehicles. A few
                                                                                                        Virgin Islands, and Guam. A list of                    commenters suggested that, just as with
                                                  The Executive Order is applicable to                  States and Territories that have taken                 seat belts, airbags, and driving while
                                                the operation of CMVs by Federal                        such actions can be found at the                       impaired, the government must
                                                government employees carrying out                       following DOT Web site: http://                        establish regulations concerning texting
                                                their duties and responsibilities, or                   www.distraction.gov/state-laws.                        to protect public health and safety.
                                                using electronic equipment supplied by                  Generally, the State requirements are                     Only a few commenters did not
                                                the government. This order also                         applicable to all drivers operating motor              support a ban on texting. Some
                                                encourages contractors to comply while                  vehicles within those jurisdictions,                   commenters said that the responsibility
                                                operating CMVs on behalf of the Federal                 including CMV operators. Because some                  should be addressed by the States, with
                                                government.                                             States do not currently prohibit texting               guidance from the Federal government.
                                                Regulatory Guidance                                     while driving, there is a need for a                   Several commenters suggested that the
                                                                                                        Federal regulation to address the safety               Agency mandate outreach, education,
                                                  On January 27, 2010, FMCSA                            risks associated with texting by CMV                   and company policies in lieu of a
                                                published regulatory guidance                           drivers. This final rule restriction                   prohibition.
                                                concerning the applicability of 49 CFR                  provides uniform language applicable to                   The Agency approached the
                                                390.17, Additional equipment and                        CMV drivers engaged in interstate                      distracted driving issue by taking action
                                                accessories, to any CMV operator                        commerce, regardless of the presence or                on the riskiest issue first, by initiating
                                                engaged in ‘‘texting’’ on an electronic                 absence of a State law or regulation.                  rulemaking to prohibit texting by CMV
                                                device while driving a CMV in interstate                Generally, State laws and regulations                  drivers. The use of mobile telephones,
                                                commerce (75 FR 4305). The guidance                     remain in effect and could continue to                 including texting, is occurring
                                                interpreted § 390.17 as prohibiting                     be enforced with regard to CMV drivers,                increasingly. By approaching this
                                                texting on electronic devices while                     provided those laws and regulations are                complex subject with a focus, on the
                                                driving because it decreases the safety of              compatible with the Federal                            unsafe behavior regardless of the
                                                operations. As of the effective date of                 requirements. This rule does not affect                technology, FMCSA received the
                                                this final rule, the guidance will be                   the ability of States to institute new                 support of its stakeholders to act quickly
                                                withdrawn because this final rule makes                 prohibitions on texting while driving.                 to stop texting in CMVs. Subsequently,
                                                the guidance on texting no longer                       For more information see the                           FMCSA will evaluate other aspects of
                                                necessary. The Agency does not intend                   Federalism section later in this                       distracted driving and consider future
                                                to remove the authority to cite drivers                 document.                                              actions.
                                                under § 390.17 for unsafe operation of a
                                                CMV. Section 390.17 still applies to any                III. Discussion of Comments                            Dispatching Devices and Fleet
                                                use of additional equipment and                            FMCSA received approximately 400                    Management Systems
                                                accessories that decreases the safety of                comments in response to the NPRM.26                       Many commenters were concerned
                                                operation of the CMVs on which they                     The commenters included associations                   that FMCSA excepted texting on
                                                are used.                                               representing trucking, motorcoaches,                   dispatching devices from this
                                                                                                        public transportation, highway safety,                 rulemaking. The American Association
                                                Federal Railroad Administration                         the legal and law enforcement                          for Justice believed that FMCSA should
                                                   On October 7, 2008, FRA published                    communities, the insurance industry,                   go further and prohibit CMV operators
                                                Emergency Order 26 (73 FR 58702).                       and bicyclists. Three unions                           from using on-board computers while
                                                Pursuant to FRA’s authority under 49                    representing drivers submitted                         driving. The Commercial Vehicle Safety
                                                U.S.C. 20102 and 20103, the order,                      comments, as well as representatives of                Alliance (CVSA) commented that
                                                which took effect on October 1, 2008,                   State governments. Commenters from                     FMCSA should prohibit not only
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                                                restricts railroad operating employees                  the general public included motorists                  dispatching devices, but many other
                                                from using distracting electronic and                   and bicyclists concerned with their                    technologies that cause distractions.
                                                electrical devices while on duty. Among                 safety when operating around CMVs. In                  NSC held that fleet management devices
                                                other things, the order prohibits both                  addition, FMCSA received comments                      and on-board and laptop systems should
                                                the use of cell phones and texting. FRA                 from the new Cornell eRulemaking                       not be exempt from the rule. Advocates
                                                cited numerous examples of the adverse                                                                         noted that it interpreted the NPRM to
                                                impact that electronic devices can have                   26 See   75 FR 16391 (April 1, 2010).                prohibit all texting while driving, even


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                                                59126            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

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


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                                                                 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                           59127

                                                School Bus Operations                                   vehicles were involved in an incident or              safety, the compliance with which would not
                                                                                                        crash while the driver was using a                    prevent full compliance with these
                                                   ATU believed it is unnecessary to                                                                          regulations by the persons subject thereto.
                                                extend the ban to public school bus                     mobile phone or electronic device and
                                                drivers.                                                that activity was noted as a possible                    This provision allows the States and
                                                   FMCSA Response:                                      contributing factor. In June 2008, a                  their subdivisions to enforce their laws
                                                   FMCSA is precluded by statute from                   video of a San Antonio bus crash was                  and regulations relating to safety, as
                                                applying the FMCSRs to employees of                     aired on major news networks. The                     long as that would not preclude persons
                                                Federal, State and local governments,                   video shows a city bus driver texting at              subject to the FMCSRs from fully
                                                even when they are engaged in                           the wheel moments before crashing into                complying with them. This provision
                                                transportation in interstate commerce                   a sport utility vehicle.                              satisfies the requirements of 49 U.S.C.
                                                                                                           However, FMCSA acknowledges that                   31136(c)(2)(B) by minimizing
                                                (49 U.S.C. 31132(2) and (3)). This would
                                                                                                        the government exemption applies to                   unnecessary preemption and allowing
                                                include drivers of school buses
                                                                                                        many transit and school bus operations                the States to establish additional
                                                employed by such government entities.
                                                                                                        and their drivers. These drivers are only             regulations that do not prevent full
                                                However, drivers employed by private                    subject to the CDL disqualification if the
                                                entities providing school bus                                                                                 compliance with the FMCSRs. (See also
                                                                                                        violation occurs in a State that has State            49 U.S.C. 31141(c).)
                                                transportation under contract to                        or local traffic laws prohibiting texting
                                                government entities will be covered, if                                                                          In the case of States receiving grants
                                                                                                        while driving as a serious traffic offense.           under the Motor Carrier Safety
                                                they are engaged in interstate                          However, the Agency included as many
                                                transportation. In addition, both                                                                             Assistance Program (MCSAP), however,
                                                                                                        passenger-carrying drivers as possible,               there has been a continuous progression
                                                government and private drivers of                       within the scope of its statutory
                                                school buses requiring a CDL would be                                                                         towards uniform CMV safety standards
                                                                                                        authority.                                            for both interstate and intrastate
                                                subject to the CDL disqualification if
                                                they are convicted of 2 or more serious                 Preemption of State and Local Laws                    transportation since MCSAP was first
                                                traffic violations, which can include a                                                                       enacted as part of the Surface
                                                                                                           In response to a request for comments
                                                conviction for violating a State traffic                                                                      Transportation Assistance Act of 1982,
                                                                                                        on both texting policies and their
                                                law prohibiting texting while driving.                                                                        §§ 401–404, Public Law 97–424, 96 Stat.
                                                                                                        enforcement and on the applicability of
                                                                                                                                                              2097, 2154 (Jan. 6, 1983). The statute
                                                Transit Agencies                                        State laws and local ordinances to
                                                                                                                                                              directs the Agency to provide grants to
                                                                                                        school bus drivers, the Transportation
                                                   In response to a request in the NPRM,                                                                      the States for, among other things, ‘‘the
                                                                                                        Workers Union of America, AFL–CIO
                                                comments were received from                                                                                   enforcement of regulations, standards,
                                                                                                        (TWU) stated that ‘‘this proposal needs
                                                representatives of several transit                                                                            and orders of the [Federal] Government
                                                                                                        to minimize the preemption and keep
                                                industry interests (i.e., the American                                                                        on commercial motor vehicle safety
                                                                                                        guidelines leveled,’’ citing the
                                                Public Transportation Association                                                                             * * * and compatible State regulations,
                                                                                                        provisions of 49 U.S.C. 31136(c)(2)(B).
                                                (APTA), ATU, Simi Valley Transit)                                                                             standards and orders’’ (49 U.S.C.
                                                                                                        CVSA commented that the rules should
                                                outlining existing policies that include                                                                      31102(a)).
                                                                                                        not preempt the States’ ability to take
                                                the prohibition of texting on any device,                                                                        Following the enactment of section
                                                                                                        additional measures with respect to
                                                personal or transit agency-specific,                                                                          4002(l) of Intermodal Surface
                                                                                                        non-CDL commercial drivers operating
                                                while operating transit vehicles. APTA                                                                        Transportation Efficiency Act of 1991,
                                                                                                        in intrastate commerce. They were
                                                expressed its support for the rule, and                                                                       Public Law 102–240, 105 Stat. 1914,
                                                                                                        concerned that the proposed rules might
                                                provided its recommended practice that                                                                        2144 (Dec. 19, 1991) (ISTEA), the
                                                                                                        directly or indirectly require the States
                                                outlines distractions that should be                                                                          Agency utilized that statutory authority
                                                                                                        to ‘‘categorize’’ all currently exempted
                                                prohibited, including personal                                                                                to establish conditions for States that
                                                                                                        non-CDL drivers operating in intrastate
                                                electronic devices, as well as other                                                                          received MCSAP grants to preempt
                                                                                                        commerce into the regulations. CVSA
                                                common distractions such as reading                                                                           incompatible State regulation of CMV
                                                                                                        suggested that such actions should be
                                                print material and consuming food.                                                                            safety (Motor Carrier Safety Assistance
                                                                                                        left to the States through their
                                                   ATU stated that it is unnecessary to                                                                       Program, 57 FR 13572, 13579–81 (Apr.
                                                                                                        individual laws as they deem
                                                extend the ban on texting to transit                                                                          16, 1992) (NPRM) and 57 FR 40946,
                                                                                                        appropriate. Any intent to bring these
                                                employees because virtually all transit                                                                       40951–52 (Sep. 8, 1992) (final rule)).
                                                                                                        drivers into the regulations should be
                                                agencies already have a ban on the use                                                                        The Agency noted (at 57 FR 13580) that:
                                                                                                        accomplished through a separate
                                                of cell phones and electronic devices                   rulemaking.                                             Section 4002(l) of the ISTEA directs the
                                                while operating a vehicle. ATU                             FMCSA Response:                                    Secretary to issue final regulations specifying
                                                commented that it is important to                          In the most general sense, under long-             tolerance guidelines and standards for
                                                recognize the differences between a                     standing principles, the FMCSRs                       ensuring compatibility of intrastate
                                                long-haul bus system and a local transit                establish minimum safety regulations                  commercial motor vehicle safety laws and
                                                system, and allow exceptions for transit                                                                      regulations with the Federal motor carrier
                                                                                                        that may be supplemented by the States,               safety regulations under the MCSAP. The
                                                agencies, whether operated by Federal,                  as long as they are consistent with the               [Agency] has always administered the
                                                State, or local government. Simi Valley                 regulations. The NPRM described the                   MCSAP in a way that would promote the
                                                Transit supports the prohibition and                    effect of the proposed rules in                       enforcement by State agencies regardless
                                                notes that its operators are prohibited                 accordance with provisions already in                 whether the inspected commercial motor
                                                from texting on any type of                             the FMCSRs, which establish the basis                 vehicles, drivers or motor carriers were
                                                communication systems in their                          for the scope of any preemption (75 FR                involved in interstate or intrastate commerce.
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                                                vehicles.                                               at 16398). Specifically, 49 CFR 390.9                 The [Agency] has consistently taken the
                                                   FMCSA Response:                                      states:                                               position that this was the intent of MCSAP
                                                   It is unsafe to text while operating a                                                                     as originally enacted in the STAA of 1982,
                                                                                                          Except as otherwise specifically indicated,         and this provision confirms that position.
                                                CMV regardless of the operating                         subchapter B of this chapter [III of Title 49,
                                                differences among motorcoach, school                    CFR] is not intended to preclude States or              The Agency has issued tolerance
                                                bus, or local transit system vehicles.                  subdivisions thereof from establishing or             guidelines that allow certain limited
                                                There have been instances where transit                 enforcing State or local laws relating to             departures from the Federal standards


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                                                59128            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                by intrastate CMV regulations, and those                   FMCSA Response:                                    increased law enforcement efforts can
                                                guidelines were first codified, along                      The Agency does not believe the                    lead distracted drivers to put down their
                                                with procedures for periodic State and                  request is appropriate given the safety               cell phones and focus on the road.
                                                Agency review of compatibility, in the                  risks of texting while driving. Three                 During one week of the pilot program in
                                                1992 MCSAP final rule. (See 57 FR                       years is more than enough time to adopt               Hartford, police cited more that 2,000
                                                40951–52, 40957–58 (former 49 CFR                       this regulation, even if a State                      drivers for talking on mobile phones
                                                350.11) and 40961–62 (49 CFR part 350,                  legislature meets every other year to                 and 200 more for texting while driving.
                                                former App. C).) In addition, the process               pass new legislation. The Agency has                  With regard to the Fourth Amendment
                                                for determining compatibility of State                  consistently allowed a maximum of 3                   issues raised by OOIDA, enforcement
                                                laws with Federal regulations and                       years for adoption of MCSAP                           activities related to the implementation
                                                standards under the authority of 49                     compatible regulations (49 CFR                        of the final rule that involve acquisition
                                                U.S.C. 31141 was combined with the                      350.331(d)). With regard to CDL                       of evidence will be governed by the
                                                process for reviewing State funding                     regulations, FMCSA is only adding a                   principles established in judicial
                                                under MCSAP (57 FR 40952).                              new offense to an existing category of                precedents interpreting and applying
                                                  More recently, FMCSA reiterated that:                 ‘‘Serious Traffic Violations.’’ No new                the Fourth Amendment and related
                                                  [T]he congressional intent and purpose of
                                                                                                        penalties have to be created by State                 statutory provisions, such as the
                                                the MCSAP [is] to ensure uniformity of                  legislatures; they already exist in State             Electronic Communications Privacy Act
                                                regulations and enforcement among the                   statutes and laws for existing serious                of 1986, Public Law No. 99–508, 100
                                                States. Since the inception of the program,             traffic violations set forth in § 383.51.             Stat. 1848 (1986). It is FMCSA’s view
                                                the agency has required each State to enforce           Furthermore, States have consistently                 that these principles should address the
                                                uniform motor carrier safety and hazardous              demonstrated their ability to implement               concerns raised by OOIDA.
                                                materials regulations for both interstate and           more complex and expansive
                                                intrastate motor carriers and drivers. Safety           regulations in the past in fewer than 3               Penalties
                                                standards in one State must be compatible               years.                                                  Several commenters said that the
                                                with the requirements in another State in                                                                     proposed penalties are not harsh
                                                order to foster a uniform national safety               Enforcement                                           enough. AIA stated that, since research
                                                environment.                                               Several commenters noted that                      shows that texting while driving can
                                                   (Motor Carrier Safety Assistance                     enforcement will be difficult and                     have an effect that is the same as or
                                                Program, 65 FR 15092, 15098 (Mar. 21,                   highlighted the current lack of                       worse than severely intoxicated driving,
                                                2000)). The MCSAP rules adopted in                      enforcement of existing laws. Some                    the CDL penalties for texting should be
                                                2000 recodified and strengthened the                    commenters were concerned that                        identical to those applicable to
                                                tolerance guidelines, which are now                     enforcement may take place only after                 intoxicated driving. On the other hand,
                                                found at 49 CFR 350.339–350.345.                        there is a crash. To the extent possible,             TTD and ATU stated the proposal
                                                   With regard to CVSA’s comments on                    CVSA felt that regulations should not be              correctly sanctions CDL holders for
                                                the preemption of State safety regulation               prescriptive, but rather performance-                 texting while driving only when they
                                                of intrastate CMV drivers, FMCSA did                    based, and efforts should be made to use              are ‘‘operating a CMV’’ and not ‘‘while
                                                not propose in this rulemaking any                      existing authorities for enforcement.                 operating a vehicle for which a CDL is
                                                departure from the compatibility                        Several commenters worried about the                  not required.’’
                                                requirements for intrastate CMVs and                    mechanics of enforcement.                               FMCSA Response:
                                                drivers that are an essential element of                   In addition, OOIDA commented that                    FMCSA, to a degree, is constrained by
                                                MCSAP. As explained in the NPRM, the                    an enforcement plan is necessary to                   the applicable statutes in establishing
                                                States receiving MCSAP grants will be                   ensure that enforcement of a restriction              new CDL qualifications. Under 49
                                                required, as a condition of receiving the               on texting conforms to the requirements               U.S.C. 31310(e), a CDL driver may only
                                                grants, to adopt compatible regulations                 of the Fourth Amendment’s provisions                  be disqualified for committing multiple
                                                with regard to texting by CMV drivers                   governing searches and seizures. OOIDA                violations of ‘‘serious traffic violations
                                                in accordance with the requirements of                  is most concerned about explaining                    involving a commercial motor vehicle
                                                49 CFR part 350. At the same time,                      what, if any, access enforcement                      operated by the’’ CDL driver. This has
                                                those States have the ability, at their                 personnel would have to electronic                    always been interpreted as requiring
                                                discretion, to utilize the limited                      devices present in a CMV and to the                   that the offense be committed while
                                                variances from MCSAP compatibility                      information stored on the devices.                    operating a CMV (see 49 CFR 383.51,
                                                allowed by 49 CFR 350.341, which                           FMCSA Response:                                    Table 2). This is the statutory authority
                                                FMCSA is not modifying in this                             FMCSA does not believe that                        that FMCSA must rely on to add texting
                                                rulemaking. Section 350.341 sets the                    questions about specific enforcement                  while operating a CMV to the list of
                                                boundaries for the allowable variances                  procedures are a basis for not taking                 serious traffic violations to provide the
                                                from the uniform Federal standard                       action to restrict texting while driving.             basis for a possible disqualification of a
                                                governing texting by CMV drivers for                    Enforcement of this rule will involve a               CDL driver. On the other hand, a
                                                intrastate motor carrier operations in the              period of familiarization for both                    different statutory provision, 49 U.S.C.
                                                States receiving MCSAP grants.                          Federal and State enforcement agencies.               31310(g), requires longer
                                                                                                        If FMCSA were considering a rule                      disqualifications of a CDL driver with
                                                State Adoption                                          allowing texting under certain                        multiple convictions involving a motor
                                                   The National Conference of State                     circumstances, performance-based                      vehicle (other than a CMV) of either: (1)
                                                Legislators (NCSL) requested that DOT                   standards might be suitable; they are not             A serious offense ‘‘that has resulted in
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                                                provide States with more than 3 years                   a viable option for this rule, which                  the revocation, cancellation, or
                                                to adopt the necessary laws and                         requires specific restriction concerning              suspension of the individual’s license’’;
                                                regulations. NCSL recommended that                      an activity that compromises safety. As               or (2) a ‘‘drug or alcohol related offense’’
                                                these new requirements be ‘‘excluded                    part of its continuing effort to combat               (Cf. 49 CFR 383.51, Table 2).
                                                from the sanctions and withholds that                   distracted driving, DOT kicked off pilot                FMCSA is unaware of any State law
                                                exist in the underlying statute and                     programs in Hartford, Connecticut, and                that provides for the revocation,
                                                regulations.’’                                          Syracuse, New York, to test whether                   cancellation, or suspension of a driver’s


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                                                license when the driver is convicted of                 regulations should be based solely on                 proven to reduce unsafe driver
                                                texting while driving a non-CMV.                        research and facts. CVSA believed that                behaviors and boost compliance, in
                                                Therefore, the longer disqualification                  there needs to be more research on the                order to raise awareness, a necessary
                                                period provided in Section 31310(g) is                  issue of distracted driving, especially as            step with new rules and laws. Several
                                                not available for application to texting                it relates to crashes and the different               commenters suggested that the Agency
                                                in violation of State or local traffic laws.            types of distractions—both technology-                mandate certain training curricula and
                                                   Section 31310(e) does allow FMCSA                    and non-technology-related. TWU noted                 company policies in lieu of a
                                                to specify that the period of                           that the basis for this rule has been                 prohibition.
                                                disqualification should be ‘‘at least 60                overall statistics, but not specific data                FMCSA Response:
                                                days’’ for obtaining two convictions                    on texting by CMV drivers.                               The Agency agrees that enforcement
                                                within a 3-year period and ‘‘at least 120                  FMCSA Response:                                    and outreach efforts are essential to
                                                days’’ for obtaining three or more                         In response to the NPRM, the Agency                increase public awareness. DOT
                                                convictions within a 3-year period.                     did not receive any additional research               campaigns, such as those addressing
                                                However, the Agency decided that the                    data on texting from the public. The                  seat belt use and drunk driving, have
                                                penalties for texting should be similar to              Agency reviewed existing research and                 proven to reduce injuries and fatalities.
                                                the disqualification periods for other                  other data and concluded that texting                 DOT already has in place campaigns to
                                                traffic violations already in place for                 while driving is a dangerous activity.                educate all vehicle drivers on distracted
                                                CMV drivers. The Agency considered                      FMCSA has data on texting by CMV                      driving. Platforms for sharing
                                                the severity of the penalties in the                    drivers, included in the VTTI study that              information include the Web site
                                                development of the NPRM. FMCSA                          FMCSA published in 2009, ‘‘Driver                     http://www.Distraction.gov, as well as
                                                based its decision on the level of                      Distraction in Commercial Vehicle                     outreach on radio and television, which
                                                severity of the current penalty for other               Operations.’’ FMCSA finds that the                    have proven to reduce unsafe driver
                                                serious violations such as reckless                     results from that study provide                       behaviors and boost compliance
                                                driving and speeding, as provided by 49                 sufficient data to justify a prohibition              awareness.
                                                U.S.C. 31310(e) and 49 CFR 383.51(c).                   against texting. The data demonstrate                    For more information on research,
                                                                                                        safety-critical events that occurred                  outreach, and education, the reader may
                                                Use of Federal Civil Penalties and State                while texting by CMV drivers.                         reference the National Highway Traffic
                                                Fines                                                      There is no basis for deferring a ban              Safety Administration (NHTSA) Driver
                                                  Some commenters, including the                        against texting until additional research             Distraction Program. This program is a
                                                League of American Bicyclists,                          is completed. If the industry believes                plan to communicate NHTSA’s
                                                suggested that any fines collected be                   texting should be allowed under certain               priorities to the public with regard to
                                                routed toward awareness programs,                       circumstances, the Agency welcomes                    driver distraction safety challenges,
                                                marketing campaigns, street safety, and                 the opportunity to engage in an open                  focusing on the long-term goal of
                                                targeted traffic enforcement. Others                    forum to identify those circumstances                 eliminating crashes that are attributable
                                                suggested providing the funds to                        and the research which indicates that                 to distraction. The complete overview
                                                infrastructure programs for other modes                 safety would not be compromised by the                can be found at http://
                                                of transportation such as walking,                      visual, cognitive, and manual                         www.distraction.gov/files/dot/
                                                cycling, and public transportation.                     distraction associated with texting.                  6835_DriverDistractionPlan_4-
                                                  FMCSA Response:                                       FMCSA notes that the VTTI study was                   14_v6_tag.pdf. The Secretary considers
                                                  While the Agency agrees with the                      peer reviewed. The study data                         preventing distracted driving a priority
                                                view that bicyclists and pedestrians are                highlighted the need for action rather                for the Department and has put $50
                                                vulnerable to distracted driving                        than the need for additional research.                million into his Fiscal Year 2011 Budget
                                                behaviors, the Agency does not have                     Because limited CMV-specific data is                  for education, awareness, and outreach.
                                                discretion in the use of Federal civil                  available, the rule is based in part, but
                                                penalties. The Agency cannot control                    not entirely, on research studies of all              Effect of a Texting Ban on Small
                                                the use of funds collected by local                     driver types, as described extensively in             Businesses
                                                enforcement agencies through fines                      both the NPRM and previously in this                    OOIDA stated that FMCSA did not
                                                received from traffic violations. Its                   final rule. FMCSA supports further                    identify nor analyze the effect of the
                                                authority to direct the use of fines and                research that examines distracted                     proposed rule on small businesses
                                                penalties collected by State and local                  driving by CMV drivers and DOT                        under the Regulatory Flexibility Act.
                                                enforcement agencies receiving MCSAP                    continues to conduct research on                        FMCSA Response:
                                                grants is limited to ensuring that the                  distracted driving.                                     As required by the Regulatory
                                                States provide ‘‘satisfactory assurances                                                                      Flexibility Act (5 U.S.C. 601 et seq.) the
                                                                                                        Outreach
                                                the [State] has or will have the legal                                                                        Agency conducted an economic analysis
                                                authority * * * necessary to enforce’’                    FMCSA received multiple comments                    of the impact of this rule on small
                                                CMV safety regulations (49 U.S.C.                       on the necessity of public education,                 entities and certified that a Regulatory
                                                31102(b)(1)(C)). FMCSA is required by                   outreach, and awareness campaigns.                    Flexibility Analysis is not necessary
                                                statute to deposit all civil penalties it               CVSA commented that safety efforts on                 because the rule will not have a
                                                collects in the Highway Trust Fund (49                  distracted driving need to include                    significant economic impact on a
                                                U.S.C. 521(b)(10)).                                     enforcement, engineering, and                         substantial number of small entities
                                                                                                        education initiatives. CVSA stated that               subject to the requirements of this rule
                                                Data and Research on Texting by CMV                     DOT and the appropriate modal                         (See the Final Regulatory Evaluation in
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                                                Drivers                                                 administrations, as well as Transport                 the docket for this rulemaking).
                                                  While commenters generally agreed                     Canada, will need to make adequate
                                                that existing research shows that texting               resources available to the States and                 Non-CMV Drivers
                                                may seriously compromise safety, some                   other jurisdictions for enforcement and                  Many commenters, including unions,
                                                commenters found the existing research                  education activities. NSC urged FMCSA                 trade associations and bicyclists
                                                to be inadequate. Though ATA                            to support the rule’s effectiveness with              suggested that this texting prohibition
                                                supported the NPRM, it commented that                   high-visibility enforcement campaigns,                be applied to all vehicle drivers,


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                                                59130            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                including passenger car drivers,                        Disabling Cell Phones                                    The Agency did not incorporate
                                                motorcyclists, and bicyclists.                                                                                explanatory adjectives such as
                                                                                                          Many commenters suggested using
                                                  FMCSA Response:                                                                                             ‘‘handheld,’’ ‘‘portable,’’ and ‘‘personal’’
                                                                                                        technology to limit a driver’s ability to
                                                  While FMCSA agrees that no vehicle                                                                          that had been included in other
                                                                                                        operate a mobile telephone when
                                                driver should text while driving,                                                                             documents because the Agency wanted
                                                                                                        driving by having the phone
                                                FMCSA is limited by its statutory                                                                             to focus on the behavior—not the
                                                                                                        automatically disabled in a moving
                                                authority in its ability to regulate                                                                          device. After consideration of the
                                                                                                        vehicle. CVSA stated that electronic
                                                distracted driving. The Agency’s direct                                                                       comments, the texting definition
                                                                                                        devices, whether they are built into the
                                                authority is limited to drivers of CMVs                                                                       clarifies that any non-texting functions,
                                                                                                        dash or nomadic devices, need to have
                                                in interstate commerce (49 U.S.C.                                                                             which include functions on dispatching
                                                                                                        an ‘‘in-motion’’ mode to prevent their
                                                31136(a)). The Agency cannot address                                                                          devices, fleet management systems,
                                                                                                        use (unless in emergency situations)                  smart phones, and similar ‘‘multi-
                                                any aspects of distracted driving by non-               during vehicle movement. CeRI
                                                CMV drivers, motorcyclists, pedestrians,                                                                      function’’ devices (e.g., Global
                                                                                                        commenters suggested requiring all cell               Positioning System, hours of service
                                                or bicyclists.                                          phones to be programmed to shut down                  tracking capabilities, and music
                                                Limiting the Use of Cell Phones and                     texting, e-mail, and internet functions               playing), are not prohibited by this
                                                Other Interactive Devices in CMVs                       whenever the phone travels faster than                rulemaking.
                                                                                                        5 or 10 miles per hour (mph) and stated
                                                   Approximately 50 commenters                          that manufacturers should be required                 Section 391.2
                                                requested a complete ban on cell phones                 to add such functionality to all cell
                                                while driving CMVs. Many commenters                                                                             FMCSA amends 49 CFR 391.2, which
                                                                                                        phones.                                               provides certain exceptions to the
                                                believed that other electronic devices                    FMCSA Response:
                                                should be limited in the current rule or                                                                      requirements of part 391 for custom
                                                                                                          Requiring that such capabilities be                 farm operations, apiarian industries,
                                                recommended such a course for future
                                                                                                        installed is beyond the scope of this                 and specific farm vehicle drivers, to
                                                rulemaking. There was also concern that
                                                                                                        rulemaking. However, carriers are free                enable the Agency to make violations of
                                                the proposed rule might not go far
                                                                                                        to explore and implement such                         the Federal texting prohibition a
                                                enough in addressing broader issues
                                                                                                        capabilities as they see fit.                         disqualifying offense for such drivers.
                                                related to distracted driving. While
                                                                                                        IV. Discussion of Rule                                While the explicit Federal prohibition
                                                NTSB acknowledged that FMCSA views
                                                                                                                                                              against texting applies directly to these
                                                the prohibition of texting as a first step                The general structure of this final rule            drivers, the disqualification provision
                                                and plans to proceed with additional                    follows the outline contained in the                  would not apply without this
                                                rulemaking on this issue in the near                    NPRM (75 FR 16399). Any changes from                  amendment to the current exception
                                                future, NTSB wanted to ensure that the                  the NPRM are described below.                         under 49 CFR 391.2.
                                                larger issue of cell phone use by drivers
                                                of CMVs is adequately addressed.                        Section-by-Section Analysis                           Section 391.15
                                                   A number of comments addressed                       Federal Prohibition Against Texting by                  The Agency adds a new paragraph (e)
                                                other electronic devices generally found                Interstate CMV Drivers                                to this section to provide for the
                                                in CMVs, such as citizens band radios,                                                                        disqualification of any driver convicted
                                                GPS devices, and laptop computers, and                  Section 390.3
                                                                                                                                                              of two or more violations of the new
                                                stated that they should be prohibited by                   The Agency determined that it has the              prohibition set forth in § 392.80 from
                                                FMCSA. TTD noted that FMCSA plans                       authority to modify several regulatory                operating a CMV in interstate
                                                to address the use of other electronic                  exemptions in the FMCSRs, including                   commerce. The change mirrors the
                                                devices in separate rulemaking                          one for school bus operations and one                 corresponding new provisions
                                                proceedings, although they had                          for CMVs designed or used to transport                governing the disqualification of CDL
                                                concerns regarding motor vehicle                        between 9 and 15 passengers (including                drivers in § 383.51(c). The required
                                                operators who, they say, ‘‘are often                    the driver), not for direct compensation              number of convictions to cause a
                                                required to be dispatched by citizens                   (49 CFR 390(f)(1) and (6)). This action               disqualification and the period of
                                                band radio, global position devices, and                is necessary for public safety regarding              disqualification are the same: 60 days
                                                other electronic technologies.’’                        school bus transportation by interstate               for the second offense within 3 years
                                                   FMCSA Response:                                      motor carriers. In addition, the Agency               and 120 days for three or more offenses
                                                   FMCSA acknowledges there are safety                  determined that the rule should apply to              within 3 years. In addition, the first and
                                                concerns about the level of distraction                 the operation by drivers of small-                    each subsequent violation of such a
                                                associated with cell phone use. Also, it                passenger carrying vehicles (designed to              prohibition are subject to civil penalties
                                                is the subject of both an NTSB (H–06–                   transport 9–15 passengers) that are not               imposed on such drivers, in an amount
                                                27) and a MCSAC recommendation. The                     receiving direct compensation that are                up to $2,750 (49 U.S.C. 521(b)(2)(A), 49
                                                use of cell phones and other electronic                 otherwise exempt from most of the                     CFR 386.81 and App. B, ¶ A(4)).
                                                devices by CMV drivers for functions                    FMCSRs under 49 CFR 390.3(f)(6).
                                                other than texting, however, is outside                                                                       Section 392.80
                                                the scope of consideration in this                      Section 390.5                                           In this section the Agency prohibits
                                                rulemaking. In order to address                             The Agency adds new definitions for               texting while driving a CMV, as defined
                                                expeditiously the dangers of texting                    the terms ‘‘electronic device’’ and                   in 49 CFR 390.5. In addition, the first
                                                while driving and prevent future                        ‘‘texting,’’ for general application. The             and each subsequent violation of such a
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                                                crashes, injuries, and fatalities, the                  definition of ‘‘driving’’ is incorporated             prohibition are subject to civil penalties
                                                Agency chose to first focus on texting,                 into the prohibition of texting while                 imposed on such drivers, in an amount
                                                as an especially risky behavior that can                driving a CMV in new § 392.80, in order               up to $2,750 (49 U.S.C. 521(b)(2)(A), 49
                                                cause physical, visual, and cognitive                   to restrict the use of the term to texting            CFR 386.81 and App. B, ¶ A(4)).
                                                distraction. FMCSA will evaluate other                  activities and to avoid limiting the                  Furthermore, this rule states that motor
                                                aspects of distracted driving and                       scope of the term as used in other                    carriers must not allow nor require
                                                consider future actions.                                provisions of the FMCSRs.                             drivers to text while driving. Employers


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                                                                 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                        59131

                                                may also be subject to civil penalties in               must occur while the driver is operating              Plan (CVSP) in which the States set
                                                an amount up to $11,000 (49 U.S.C.                      a CMV that requires a CDL; the                        safety performance goals and priorities.
                                                521(b)(2)(A), 49 CFR 386.81 and                         operative provisions in the revised table             Therefore, FMCSA assumes that the
                                                Appendix B, paragraphs (a)(3) and (4)).                 limit the types of violations that could              adoption of compatible State rules
                                                FMCSA also includes a provision in this                 result in a disqualification accordingly.             would not necessarily result in
                                                section to apply this new prohibition to                   Every State that issues CDLs is                    increased enforcement costs. The States
                                                ‘‘school bus operations notwithstanding                 required to impose this disqualification              would include enforcement of a texting
                                                the general exception in 49 CFR                         on a driver required to have a CDL                    ban in their CVSPs as warranted by their
                                                390.3(f)(1).’’ Therefore, school bus                    issued by that State whenever that CDL                analysis of truck and bus crash data, but
                                                drivers who are employed by non-                        driver is convicted of the necessary                  they would not be required to prioritize
                                                government entities and who transport                   number of violations (for 60 days for the             enforcement based solely on the
                                                school children and/or school personnel                 second offense within 3 years and for                 issuance of this rule. States that
                                                between home and school in interstate                   120 days for 3 or more offenses within                currently have texting prohibitions may
                                                commerce are subject to the prohibition.                3 years) while operating in States where              not incur much in costs, whereas states
                                                FMCSA determined this rule is                           such conduct is prohibited. This is the               that do not may have to allocate new
                                                necessary for public safety regarding                   case even if the State issuing the                    resources and undertake new expenses.
                                                school bus transportation by interstate                 disqualification does not have its own                FMCSA did not quantify additional
                                                motor carriers. A definition of driving is              law on motor vehicle traffic control                  costs that these states might bear as a
                                                included in the rule. In addition, the                  prohibiting texting while operating a                 result of this rule. Participating States
                                                Agency applies the rule to the operation                CMV. (See 49 U.S.C. 31310(e) and                      may use MCSAP grant money for
                                                by drivers of small-passenger carrying                  31311(a)(15), and 49 CFR 384.218 and                  enforcement of this rule.
                                                vehicles (designed to transport 9–15                    384.219.)                                             CDL Program
                                                passengers) that are not receiving direct
                                                                                                        Section 384.301                                          States that issue CDLs are required to
                                                compensation that are otherwise exempt
                                                from most of the FMCSRs under 49 CFR                       New paragraph (e) of § 384.301                     adopt and implement the CDL
                                                390.3(f)(6).                                            requires all States that issue CDLs to                disqualification provisions that require
                                                   The rule provides for a limited                      implement the new provisions in                       disqualification for two or more
                                                exception to the texting while driving                  § 383.51(c) that relate to disqualifying              convictions of violating a State or local
                                                prohibition to allow CMV drivers to text                CDL drivers for committing the new                    traffic law or ordinance prohibiting
                                                if necessary to communicate with law                    serious traffic violation of texting while            texting while driving a CMV. States
                                                enforcement officials or other                          driving a CMV as soon as practicable,                 should be in compliance as soon as
                                                emergency services.                                     but not later than 3 years after the                  practicable, but not later than 3 years
                                                                                                        effective date of this regulation.                    after the effective date of these
                                                Federal Disqualification Standard for                                                                         regulations. If they do not comply, they
                                                CDL Drivers                                             State Compatibility                                   may be subject to the loss of up to 5
                                                                                                        Motor Carrier Safety Assistance Program               percent in the first year of substantial
                                                Section 383.5
                                                                                                        (MCSAP)                                               non-compliance and up to 10 percent in
                                                  FMCSA adds new definitions for the                                                                          subsequent years of certain Federal-aid
                                                terms ‘‘electronic device’’ and ‘‘texting’’                States that receive MCSAP grant                    highway amounts apportioned to the
                                                for application in part 383. The Agency                 funds are required, as a condition of                 State (49 U.S.C. 31311(a) and 31314).
                                                adds a broad definition of electronic                   receiving the grants, to adopt
                                                device in order to cover the multitude                  regulations on texting that are                       V. Regulatory Analyses
                                                of devices that allow users to enter and                compatible with these final regulations                  FMCSA amends the FMCSRs to
                                                read text messages. However, the                        (49 U.S.C. 31102(a) and 49 CFR                        restrict texting, including texting while
                                                Agency is not prohibiting the use of                    350.201(a)). States under MCSAP will                  using dispatching devices and fleet
                                                such devices by CMV drivers for                         have to adopt regulations compatible                  management systems, by certain drivers
                                                purposes other than texting. The                        with the prohibition on texting (in                   while operating CMVs in interstate
                                                definition of texting identifies the type               § 392.80) and the related                             commerce. The Agency also amends the
                                                of activity that is covered by this rule.               disqualification (in § 391.15(e))                     FMCSRs to impose sanctions, including
                                                                                                        applicable to both interstate and                     civil penalties and disqualification, on
                                                Section 383.51                                          intrastate transportation as soon as                  such drivers who do not comply with
                                                   In Table 2, FMCSA adds a new                         practicable, but not later than 3 years               this final rule. The goal of the regulatory
                                                serious traffic violation that will result              after the effective date of this regulation           revision is to prevent or reduce the
                                                in a CDL driver being disqualified. This                (49 CFR 350.331(d)). If States do not                 prevalence of truck and bus crashes,
                                                serious traffic violation is a conviction               adopt compatible regulations                          fatalities, and injuries on our Nation’s
                                                for violating a State or local law or                   prohibiting texting while driving a CMV               highways due to texting while driving.
                                                ordinance prohibiting texting while                     and related disqualifications, they may               In addition, the revisions will reduce
                                                driving a CMV. FMCSA adds a                             not receive full MCSAP grant funding.                 the financial and environmental
                                                description of what is considered                          Because States perform the                         burdens associated with these crashes,
                                                ‘‘driving’’ for the purpose of this                     overwhelming majority of commercial                   and promote the efficient movement of
                                                disqualification. FMCSA notes that the                  vehicle roadside inspections and                      traffic and commerce on interstate
                                                conviction must involve ‘‘texting’’ while               perform all traffic stops, enforcement of             highways.
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                                                operating a CMV and excludes                            the final rule would be carried out                      Recent studies, including one
                                                convictions for texting by a CDL driver                 primarily by the States. The requirement              commissioned by FMCSA, show that
                                                while operating a vehicle for which a                   for States to adopt and enforce                       texting is among the riskiest behaviors
                                                CDL is not required. The Agency’s                       compatible rules does not, in and of                  of the distracting activities that are
                                                decision is consistent with the                         itself, establish enforcement priorities              undertaken by CMV drivers. Because
                                                provisions of 49 U.S.C. 31310(e), which                 for States. Each year, States submit to               texting while driving is a fairly recent
                                                indicates the serious traffic violation                 FMCSA a Commercial Vehicle Safety                     phenomenon, empirical research on its


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                                                59132                Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                impact on safety is limited. FMCSA                                         activities; (b) increased fuel usage due to                   adjusts to the texting restriction and as
                                                carefully evaluated all available                                          idling as well as exiting and entering the                    new (permissible) technologies arise
                                                national-level crash data and found the                                    travel lanes of the roadway; (c)                              that compensate for the loss of the
                                                data do show that distracted driving                                       increased crash risk due to CMVs that                         texting functionality. FMCSA is
                                                often results in crashes. While these                                      are parked on the side of the roadway                         unaware of the specific future
                                                data do not identify the number of                                         and exiting and entering the travel lanes                     technologies that might arise, but we
                                                fatalities or crashes attributable to                                      of the roadway; and (d) costs to the                          continue to research and monitor
                                                texting, there are numerous studies on                                     States.                                                       technological changes in the market.
                                                driver distraction in general. FMCSA                                          The Agency estimates that this rule                           States are responsible for adopting
                                                analyzed those studies and found that                                      will cost $3.8 million annually. Current                      compatible State rules within three
                                                many of their findings can be applied as                                   guidance from the Office of the                               years of the date of the final rule.
                                                a supplementary explanation to a                                           Secretary of Transportation (OST)                             Because States perform the
                                                texting prohibition. With regard to the                                    places the value of a statistical life at                     overwhelming majority of commercial
                                                current data on texting, the regulatory                                    $6.0 million. Consequently, the texting                       vehicle roadside inspections and
                                                analysis focuses on one particular                                         restriction would have to eliminate at                        perform all traffic stops, enforcement of
                                                study—‘‘Driver Distraction in                                              most one fatality every year in order for                     the final rule would be carried out
                                                Commercial Vehicle Operations’’ (VTTI                                      the benefits of this rule to at least equal                   primarily by the States. The requirement
                                                Study)—which, though limited in scope                                      the costs. Given the unchecked                                for States to adopt and enforce
                                                and application, does shed light on the                                    expansion of texting, FMCSA believes                          compatible rules does not, in and of
                                                potential harm of texting while driving                                    the rule will save lives and prevent a                        itself, establish enforcement priorities
                                                CMVs.                                                                      substantial number of crashes.                                for States. Each year, States submit to
                                                   Currently, FMCSA does not have                                          Therefore, the rule is justified based on                     FMCSA a Commercial Vehicle Safety
                                                sufficient data that show an explicit                                      the safety benefits. The table below                          Plan (CVSP) in which the States set
                                                empirical link between texting and CMV                                     presents a summary of the estimated                           safety performance goals and priorities.
                                                crashes. Therefore, the Agency                                             costs of this rule and a threshold                            Therefore, FMCSA assumes that the
                                                exercised its professional judgment                                        analysis of the number of fatalities that                     adoption of compatible State rules
                                                consistent with Office of Management                                       would need to be avoided in order to
                                                and Budget Circular A–4 (‘‘Regulatory                                                                                                    would not necessarily result in
                                                                                                                           break even.                                                   increased enforcement costs. The States
                                                Analysis’’) and conducted a threshold
                                                analysis. A threshold or break-even                                                                                                      would include enforcement of a texting
                                                                                                                            SUMMARY OF COSTS AND THRESHOLD ban in their CVSPs as warranted by their
                                                analysis is called for when it is                                                    ANALYSIS (FIRST YEAR)
                                                impossible, or difficult, to express in                                                                                                  analysis of truck and bus crash data, but
                                                monetary units all of the important                                                                                                      they would not be required to prioritize
                                                                                                                           Lost Carrier Productivity (millions) ...                 $0.3 enforcement based solely on the
                                                benefits and costs of a rule. The most                                     Increased Fuel Consumption (mil-
                                                efficient alternative will not necessarily                                                                                               issuance of this rule. States that
                                                                                                                             lions) ..............................................  $1.1
                                                be the one with the largest quantified                                     Parking, Entering, and Exiting Road-
                                                                                                                                                                                         currently have texting prohibitions may
                                                and monetized net-benefit estimate. In                                       way Crashes (millions) ..................              $0.2 not incur much in costs, whereas states
                                                such cases, the Agency is required to                                      Costs to the States ...........................         *$2.2 that do not may have to allocate new
                                                make a determination of how important                                                                                                    resources and undertake new expenses.
                                                                                                                                Total Costs ................................        $3.8 FMCSA did not quantify additional
                                                the non-quantified benefits or costs may
                                                be in the context of the overall analysis.                                                                                               costs that these states might bear as a
                                                                                                                           Benefit of Eliminating One Fatality                           result of this rule. Participating States
                                                The threshold analysis approach                                              (millions) ........................................    $6.0
                                                therefore answers the question: How                                        Break-even Number of Lives Saved                          <1 may use MCSAP grant money for
                                                small does the value of the non-                                                                                                         enforcement of this rule.
                                                                                                                             * One-time cost.                                               FMCSA also conducted a 10-year
                                                quantified benefits (safety benefits in
                                                terms of crash prevention) have to be in                                      The productivity losses, as well as                        annualized projection of the discounted
                                                order for the rule to yield zero net                                       other costs, were estimated for only one costs and benefits of the rule, in which
                                                benefits (i.e., break even)?                                               year, as the entire threshold analysis                        the benefits are simply the value of
                                                   This regulatory evaluation considers                                    was performed as an undiscounted                              statistical life saved (i.e., $6 million).
                                                the following potential costs: (a) Loss in                                 annual estimation. The loss of                                The results, summarized below, show
                                                carrier productivity due to time spent                                     productivity is expected to diminish,                         that the net benefits, under both a 3%
                                                while parking or pulling over to the side                                  (but not necessarily vanish within one                        discount rate and a 7% discount rate,
                                                of the roadway to perform texting                                          year), as the motor carrier industry                          are positive.

                                                                                                                          SUMMARY OF ESTIMATED NET BENEFITS
                                                                                                                                                                                              3% discount rate       7% discount rate
                                                                                                      10-Year discounting                                                                        (millions)             (millions)

                                                Total Costs ...............................................................................................................................                 $15.7                  $14.0
                                                Total Benefits* .........................................................................................................................                    52.7                   45.0
                                                Net Benefits .............................................................................................................................                   37.0                   31.0
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                                                   * $6 million VSL.


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



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                                                                 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                        59133

                                                Executive Order 12866 (Regulatory                       Assistance for Small Entities                         Executive Order 13132 (Federalism)
                                                Planning and Review) and DOT                              Under section 213(a) of the Small                      A rule has implications for federalism
                                                Regulatory Policies and Procedures                      Business Regulatory Enforcement                       under Executive Order 13132,
                                                                                                        Fairness Act of 1996 (Pub. L. 104–121),               Federalism, if it has a substantial direct
                                                  FMCSA has determined that this
                                                                                                        FMCSA wants to assist small entities in               effect on State or local governments, on
                                                rulemaking action is a significant
                                                                                                        understanding this rule so that they can              the relationship between the national
                                                regulatory action under Executive Order                                                                       government and the States, or on the
                                                12866, Regulatory Planning and Review,                  better evaluate its effects on them and
                                                                                                        participate in the rulemaking. If the rule            distribution of powers and
                                                and significant under DOT regulatory                                                                          responsibilities among the various
                                                                                                        would affect your small business,
                                                policies and procedures because of the                                                                        levels of government.
                                                                                                        organization, or governmental
                                                substantial Congressional and public                                                                             FMCSA recognizes that, as a practical
                                                                                                        jurisdiction and you have questions
                                                interest concerning the crash risks                                                                           matter, this rule may have an impact on
                                                                                                        concerning its provisions or options for
                                                associated with distracted driving, even                                                                      the States. Accordingly, the Agency
                                                                                                        compliance, please consult the FMCSA
                                                though the economic costs of the rule do                personnel listed in the FOR FURTHER                   sought advice from the National
                                                not exceed the $100 million annual                      INFORMATION CONTACT section of this                   Governors Association (NGA), NCSL,
                                                threshold.                                              rule. FMCSA will not retaliate against                and the American Association of Motor
                                                                                                        small entities that question or complain              Vehicle Administrators (AAMVA) on
                                                Regulatory Flexibility Act
                                                                                                        about this rule or any policy or action               the topic of texting by letters dated
                                                   The Regulatory Flexibility Act of 1980               of FMCSA.                                             December 18, 2009. (A copy of these
                                                (5 U.S.C. 601–612) requires Federal                       Small businesses may send comments                  letters is available in the docket for this
                                                agencies to consider the effects of the                 on the actions of Federal employees                   rulemaking). In addition, FMCSA met
                                                regulatory action on small business and                 who enforce, or otherwise determine                   with representatives from NGA, NCSL,
                                                other small entities and to minimize any                compliance with, Federal regulations to               and AAMVA on February 3, 2010, to
                                                significant economic impact. The term                   the Small Business and Agriculture                    discuss FMCSA’s rulemaking initiatives.
                                                ‘‘small entities’’ comprises small                      Regulatory Enforcement Ombudsman                      The State interests that met with
                                                businesses and not-for-profit                           and the Regional Small Business                       FMCSA did not express any concerns,
                                                organizations that are independently                    Regulatory Fairness Boards. The                       then or later, with the proposed course
                                                owned and operated and are not                          Ombudsman evaluates these actions                     of action, and did not file any
                                                dominant in their fields, and                           annually and rates each agency’s                      comments.
                                                                                                        responsiveness to small business. If you                 For a full discussion of any
                                                governmental jurisdictions with
                                                                                                        wish to comment on actions by                         preemption issues, see section III.
                                                populations of less than 50,000. DOT                                                                          Discussion of Comments, Preemption of
                                                policy also requires an analysis of the                 employees of FMCSA, call 1–888–REG–
                                                                                                        FAIR (1–888–734–3247).                                State and Local Laws.
                                                impact of all regulations on small
                                                entities, and mandates that agencies                                                                          Executive Order 12630 (Taking of
                                                                                                        Unfunded Mandates Reform Act of 1995
                                                strive to lessen any adverse effects on                                                                       Private Property)
                                                these businesses.                                          The Unfunded Mandates Reform Act                     This rule would not effect a taking of
                                                                                                        of 1995 (2 U.S.C. 1531–1538) requires                 private property or otherwise have
                                                   FMCSA has conducted an economic                      Federal agencies to assess the effects of
                                                analysis of the impact of this rule on                                                                        taking implications under Executive
                                                                                                        their discretionary regulatory actions. In            Order 12630, Governmental Actions and
                                                small entities and certifies that a                     particular, the Act addresses actions
                                                Regulatory Flexibility Analysis is not                                                                        Interference with Constitutionally
                                                                                                        that may result in the expenditure by a               Protected Property Rights.
                                                necessary because the rule will not have                State, local, or tribal government, in the
                                                a significant economic impact on a                      aggregate, or by the private sector of                Executive Order 12988 (Civil Justice
                                                substantial number of small entities                    $140.8 million (which is the value of                 Reform)
                                                subject to the requirements of this rule.               $100 million in 2009 after adjusting for                This rule meets applicable standards
                                                This rulemaking will affect all of the                  inflation) or more in any 1 year. Though              in sections 3(a) and 3(b)(2) of Executive
                                                approximately 493,480 27 small entities.                this rule would not result in such                    Order 12988, Civil Justice Reform, to
                                                However, the direct costs of this rule                  expenditure, FMCSA discusses the                      minimize litigation, eliminate
                                                that small entities may incur are only                  effects of this rule elsewhere in this                ambiguity, and reduce burden.
                                                expected to be minimal. They consist of                 preamble.
                                                the costs of lost productivity from                                                                           Executive Order 13045 (Protection of
                                                foregoing texting while on duty and fuel                Paperwork Reduction Act                               Children)
                                                usage costs for pulling to the side of the                This rule would call for no new                       FMCSA analyzed this rule under
                                                road to idle the truck or passenger-                    collection of information under the                   Executive Order 13045, Protection of
                                                carrying vehicle and send or receive a                  Paperwork Reduction Act of 1995 (44                   Children from Environmental Health
                                                text message. The majority of motor                     U.S.C. 3501–3520).                                    Risks and Safety Risks. This rule is not
                                                carriers are small entities. Therefore,                 Privacy Impact Assessment                             an economically significant rule and
                                                FMCSA will use the total cost of the                                                                          would not create an environmental risk
                                                rule in the first year ($3.8 million)                     FMCSA conducted a Privacy                           to health or risk to safety that might
                                                applied to the number of small entities                 Threshold Analysis (PTA) for the rule                 disproportionately affect children.
                                                (493,480) as a worst case evaluation                    on limiting the use of wireless
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                                                                                                        communication devices and determined                  Executive Order 13211 (Energy Supply,
                                                which would average $7.70 per carrier.                                                                        Distribution, or Use)
                                                In subsequent years, the cost of the rule               that it is not a privacy-sensitive
                                                per carrier is estimated to be $3.30.                   rulemaking because the rule will not                    FMCSA analyzed this rule under
                                                                                                        require any collection, maintenance, or               Executive Order 13211, Actions
                                                  27 This number represents 99% of 498,465, the         dissemination of Personally Identifiable              Concerning Regulations That
                                                current number of interstate motor carriers with        Information (PII) from or about members               Significantly Affect Energy Supply,
                                                recent activity (source: MCMIS data 6/17/2010).         of the public.                                        Distribution, or Use. FMCSA


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                                                59134            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                determined that it is not a ‘‘significant                  FMCSA has also analyzed this rule                    Authority: 49 U.S.C. 521, 31136, 31301 et
                                                energy action’’ under that order. Though                under section 176(c) of the Clean Air                 seq., and 31502; secs. 214 and 215 of Pub. L.
                                                it is a ‘‘significant regulatory action’’               Act (CAA), as amended (42 U.S.C. 7401                 106–159, 113 Stat. 1766, 1767; sec. 1012(b)
                                                under Executive Order 12866, it is not                  et seq.), and implementing regulations                of Pub. L. 107–56; 115 Stat. 397; sec. 4140
                                                likely to have a significant adverse effect             promulgated by the Environmental                      of Pub. L. 109–59, 119 Stat. 1144, 1726; and
                                                on the supply, distribution, or use of                  Protection Agency. Approval of this                   49 CFR 1.73.
                                                energy. The Administrator of the Office                 action is exempt from the CAA’s general               ■ 2. Amend § 383.5 by adding the
                                                of Information and Regulatory Affairs                   conformity requirement since it would                 following definitions in alphabetical
                                                has not designated it as a significant                  not result in any potential increase in               order.
                                                energy action. Therefore, it does not                   emissions that is above the general
                                                require a Statement of Energy Effects                   conformity rule’s de minimis emission                 § 383.5    Definitions.
                                                under Executive Order 13211.                            threshold levels (40 CFR 93.153(c)(2)).               *       *    *     *     *
                                                Technical Standards                                     Moreover, based on our analysis, it is
                                                                                                        reasonably foreseeable that the rule                     Electronic device includes, but is not
                                                  The National Technology Transfer                      would not significantly increase total                limited to, a cellular telephone; personal
                                                and Advancement Act (15 U.S.C. 272                      CMV mileage, nor would it change the                  digital assistant; pager; computer; or any
                                                note) directs agencies to use voluntary                 routing of CMVs, how CMVs operate, or                 other device used to input, write, send,
                                                consensus standards in their regulatory                 the CMV fleet mix of motor carriers.                  receive, or read text.
                                                activities unless the agency provides                   This action merely establishes                        *       *    *     *     *
                                                Congress, through OMB, with an                          requirements to prohibit texting while
                                                explanation of why using these                                                                                   Texting means manually entering
                                                                                                        driving for CMV drivers and establishes               alphanumeric text into, or reading text
                                                standards would be inconsistent with                    a procedure for disqualification.
                                                applicable law or otherwise impractical.                                                                      from, an electronic device.
                                                Voluntary consensus standards are                       List of Subjects                                         (1) This action includes, but is not
                                                technical standards (e.g., specifications               49 CFR Part 383                                       limited to, short message service, e-
                                                of materials, performance, design, or                                                                         mailing, instant messaging, a command
                                                operation; test methods; sampling                         Administrative practice and                         or request to access a World Wide Web
                                                procedures; and related management                      procedure, Alcohol abuse, Drug abuse,                 page, or engaging in any other form of
                                                systems practices) that are developed or                Highway safety, Motor carriers.                       electronic text retrieval or entry, for
                                                adopted by voluntary consensus                          49 CFR Part 384                                       present or future communication.
                                                standards bodies.                                                                                                (2) Texting does not include:
                                                  The Agency is not aware of any                          Administrative practice and
                                                technical standards used to address                     procedure, Alcohol abuse, Drug abuse,                    (i) Reading, selecting, or entering a
                                                texting and therefore did not consider                  Highway safety, Motor carriers.                       telephone number, an extension
                                                any standards.                                          49 CFR Part 390                                       number, or voicemail retrieval codes
                                                                                                                                                              and commands into an electronic device
                                                National Environmental Policy Act                          Highway safety, Intermodal                         for the purpose of initiating or receiving
                                                   The Agency analyzed this rule for the                transportation, Motor carriers, Motor                 a phone call or using voice commands
                                                purpose of the National Environmental                   vehicle safety, Reporting and                         to initiate or receive a telephone call;
                                                Policy Act of 1969 (NEPA) (42 U.S.C.                    recordkeeping requirements.
                                                                                                                                                                 (ii) Inputting, selecting, or reading
                                                4321 et seq.) and determined under our                  49 CFR Part 391                                       information on a global positioning
                                                environmental procedures Order 5610.1,
                                                                                                          Alcohol abuse, Drug abuse, Drug                     system or navigation system; or
                                                published March 1, 2004, in the Federal
                                                Register (69 FR 9680), that this action                 testing, Highway safety, Motor carriers,                 (iii) Using a device capable of
                                                requires an Environmental Assessment                    Reporting and recordkeeping                           performing multiple functions (e.g., fleet
                                                (EA) to determine if a more extensive                   requirements, Safety, Transportation.                 management systems, dispatching
                                                Environmental Impact Statement (EIS)                    49 CFR Part 392                                       devices, smart phones, citizens band
                                                is required. FMCSA finds the impacts to                                                                       radios, music players, etc.) for a purpose
                                                                                                          Alcohol abuse, Drug abuse, Highway                  that is not otherwise prohibited in this
                                                the environment do not warrant the
                                                                                                        safety, Motor carriers.                               part.
                                                more extensive EIS, thus FMCSA issues
                                                a Finding of No Significant Impact                      ■ For the reasons discussed in the
                                                                                                                                                              *       *    *     *     *
                                                (FONSI). The findings of the EA reveal                  preamble, FMCSA amends 49 CFR parts
                                                that there are no significant positive or               383, 384, 390, 391, and 392 as follows:               ■ 3. Amend § 383.51 by adding a new
                                                negative impacts on the environment                                                                           paragraph (c)(9) to Table 2 to read as
                                                                                                        PART 383—COMMERCIAL DRIVER’S                          follows:
                                                expected to result from the rulemaking
                                                                                                        LICENSE STANDARDS;
                                                action. There could be minor impacts on
                                                                                                        REQUIREMENTS AND PENALTIES                            § 383.51    Disqualifications of Drivers.
                                                emissions, hazardous materials spills,
                                                solid waste, socioeconomics, and public                 ■ 1. The authority citation for part 383              *       *    *      *     *
                                                health and safety.                                      continues to read as follows:                             (c) * * *
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                                                                   Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations                                                                                        59135

                                                                                                                                     TABLE 2 TO § 383.51
                                                                                                                                     For a second conviction of any                                                           For a third or subsequent con-
                                                                                                                                     combination of offenses in this                                                          viction of any combination of
                                                                                     For a second conviction of any                                                             For a third or subsequent con-
                                                                                                                                     Table in a separate incident                                                             offenses in this Table in a sep-
                                                                                     combination of offenses in this                                                            viction of any combination of
                                                                                                                                     within a 3-year period while                                                             arate incident within a 3-year
                                                                                     Table in a separate incident                                                               offenses in this Table in a sep-
                                                                                                                                     operating a non-CMV, a CDL                                                               period while operating a non-
                                                                                     within a 3-year period while                                                               arate incident within a 3-year
                                                If the driver operates a motor                                                       holder must be disqualified                                                              CMV, a CDL holder must be
                                                                                     operating a CMV, a person re-                                                              period while operating a CMV,
                                                vehicle and is convicted of:                                                         from operating a CMV, if the                                                             disqualified from operating a
                                                                                     quired to have a CDL and a                                                                 a person required to have a
                                                                                                                                     conviction results in the rev-                                                           CMV, if the conviction results
                                                                                     CDL holder must be disquali-                                                               CDL and a CDL holder must
                                                                                                                                     ocation, cancellation, or sus-                                                           in the revocation, cancellation,
                                                                                     fied from operating a CMV for                                                              be disqualified from operating
                                                                                                                                     pension of the CDL holder’s li-                                                          or suspension of the CDL
                                                                                     ...                                                                                        a CMV for . . .
                                                                                                                                     cense or non-CMV driving                                                                 holder’s license or non-CMV
                                                                                                                                     privileges, for . . .                                                                    driving privileges, for . . .


                                                                      *                   *                               *                        *                             *                            *                         *
                                                (9) Violating a State or local law   60 days ....................................    Not applicable .........................   120 days ..................................   Not applicable.
                                                  or ordinance on motor vehicle
                                                  traffic control prohibiting
                                                  texting while driving.2
                                                  *                       *                     *                  *                    *
                                                  2 Driving, for the purpose of this disqualification, means operating a commercial motor vehicle, with the motor running, including while temporarily stationary be-
                                                cause of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor running
                                                when the driver has moved the vehicle to the side of, or off, a highway, as defined in 49 CFR 390.5, and has halted in a location where the vehicle can safely remain
                                                stationary.


                                                *      *       *       *      *                                       (6) The operation of commercial                                            (ii) Inputting, selecting or reading
                                                                                                                   motor vehicles designed or used to                                          information on a global positioning
                                                PART 384—STATE COMPLIANCE                                          transport between 9 and 15 passengers                                       system or navigation system; or
                                                WITH COMMERCIAL DRIVER’S                                           (including the driver), not for direct                                        (iii) Using a device capable of
                                                LICENSE PROGRAM                                                    compensation, provided the vehicle                                          performing multiple functions (e.g., fleet
                                                                                                                   does not otherwise meet the definition                                      management systems, dispatching
                                                ■ 4. The authority citation for part 384                           of a commercial motor vehicle except                                        devices, smart phones, citizens band
                                                continues to read as follow:                                       for the texting provisions of §§ 391.15(e)                                  radios, music players, etc.) for a purpose
                                                  Authority: 49 U.S.C. 31136, 31301 et seq.,                       and 392.80, and except that motor                                           that is not otherwise prohibited in part
                                                and 31502; secs. 103 and 215 of Pub. L. 106–                       carriers operating such vehicles are                                        392.
                                                159, 113 Stat. 1753, 1767; and 49 CFR 1.73.                        required to comply with §§ 390.15,                                          *      *    *     *     *
                                                ■ 5. Amend § 384.301 by adding a new                               390.19, and 390.21(a) and (b)(2).
                                                paragraph (e) to read as follows:                                  *      *    *     *    *                                                    PART 391—QUALIFICATIONS OF
                                                                                                                                                                                               DRIVERS AND LONGER
                                                § 384.301 Substantial compliance—                                  ■ 8. Amend § 390.5 by adding the                                            COMBINATION VEHICLE (LCV)
                                                general requirements.                                              following definitions in alphabetical                                       DRIVER INSTRUCTIONS
                                                *     *     *    *      *                                          order.
                                                  (e) A State must come into substantial                                                                                                       ■ 9. The authority citation for part 391
                                                compliance with the requirements of                                § 390.5          Definitions.                                               continues to read as follows:
                                                subpart B of this part in effect as of                             *      *     *     *     *
                                                                                                                                                                                                 Authority: 49 U.S.C. 322, 504, 508, 31133,
                                                October 27, 2010 as soon as practical,                                Electronic device includes, but is not                                   31136, and 31502; sec. 4007(b) of Pub. L.
                                                but not later than October 28, 2013.                               limited to, a cellular telephone; personal                                  102–240, 105 Stat. 2152; sec. 114 of Pub. L.
                                                                                                                   digital assistant; pager; computer; or any                                  103–311, 108 Stat. 1673, 1677; sec. 215 of
                                                PART 390—FEDERAL MOTOR                                             other device used to input, write, send,                                    Pub. L. 106–159, 113 Stat. 1767; and 49 CFR
                                                CARRIER SAFETY REGULATIONS;                                        receive, or read text.                                                      1.73.
                                                GENERAL                                                                                                                                        ■   10. Revise § 391.2 to read as follows:
                                                                                                                   *      *     *     *     *
                                                ■ 6. The authority citation for part 390                              Texting means manually entering                                          § 391.2       General exceptions.
                                                continues to read as follows:                                      alphanumeric text into, or reading text                                        (a) Farm custom operation. The rules
                                                  Authority: 49 U.S.C. 508, 13301, 13902,                          from, an electronic device.                                                 in this part except for § 391.15(e) do not
                                                31133, 31136, 31144, 31151, 31502, 31504;                             (1) This action includes, but is not                                     apply to a driver who drives a
                                                sec. 204, Pub. L. 104–88, 109 Stat. 803, 941                       limited to, short message service, e-                                       commercial motor vehicle controlled
                                                (49 U.S.C. 701 note); sec. 114, Pub. L. 103–                       mailing, instant messaging, a command                                       and operated by a person engaged in
                                                311, 108 Stat. 1673, 1677; sec. 217, 229, Pub.                                                                                                 custom-harvesting operations, if the
                                                L. 106–159, 113 Stat. 1748, 1767, 1773; and
                                                                                                                   or request to access a World Wide Web
                                                                                                                   page, or engaging in any other form of                                      commercial motor vehicle is used to—
                                                49 CFR 1.73.                                                                                                                                      (1) Transport farm machinery,
                                                                                                                   electronic text retrieval or electronic
                                                ■ 7. Amend § 390.3 by revising                                     text entry for present or future                                            supplies, or both, to or from a farm for
                                                paragraph (f)(1) and (f)(6) to read as                             communication.                                                              custom-harvesting operations on a farm;
                                                follows:                                                                                                                                       or
                                                                                                                      (2) Texting does not include:                                               (2) Transport custom-harvested crops
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                                                § 390.3    General applicability.
                                                                                                                      (i) Reading, selecting, or entering a                                    to storage or market.
                                                *     *     *    *    *                                            telephone number, an extension                                                 (b) Apiarian industries. The rules in
                                                  (f) * * *                                                        number, or voicemail retrieval codes                                        this part except for § 391.15(e) do not
                                                  (1) All school bus operations as                                 and commands into an electronic device                                      apply to a driver who is operating a
                                                defined in § 390.5 except for the                                  for the purpose of initiating or receiving                                  commercial motor vehicle controlled
                                                provisions of §§ 391.15(e) and 392.80;                             a phone call or using voice commands                                        and operated by a beekeeper engaged in
                                                *     *     *    *    *                                            to initiate or receive a telephone call;                                    the seasonal transportation of bees.


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                                                59136            Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations

                                                  (c) Certain farm vehicle drivers. The                 as defined in 49 CFR 390.5, and halted                This rule provides the NOAA Assistant
                                                rules in this part except for § 391.15(e)               in a location where the vehicle can                   Administrator for Fisheries (Assistant
                                                do not apply to a farm vehicle driver                   safely remain stationary.                             Administrator) with authority to restrict
                                                except a farm vehicle driver who drives                   (d) Exceptions. (1) School bus                      entry into any port or place of the
                                                an articulated (combination)                            operations and vehicles designed or                   United States of, and access to port
                                                commercial motor vehicle, as defined in                 used to transport 9 to 15 passengers,                 services by, foreign vessels on the IUU
                                                § 390.5. For limited exemptions for farm                including the driver, not for direct                  vessel lists of the aforementioned
                                                vehicle drivers of articulated                          compensation. The provisions of                       RFMOs. It also gives the Assistant
                                                commercial motor vehicles, see                          § 390.3(f)(1) and (6) are not applicable to           Administrator authority to prohibit such
                                                § 391.67.                                               this section.                                         vessels from engaging in commercial
                                                ■ 11. Amend § 391.15 by adding a new                      (2) Emergency Use. Texting while                    transactions, including, but not limited
                                                paragraph (e) to read as follows:                       driving is permissible by drivers of a                to, landing and transshipping products.
                                                                                                        commercial motor vehicle when                         Furthermore, the rule prohibits persons
                                                § 391.15   Disqualification of drivers.                 necessary to communicate with law                     and business entities subject to U.S.
                                                *      *    *     *     *                               enforcement officials or other                        jurisdiction from providing certain
                                                   (e) Disqualification for violation of                emergency services.                                   services to, or engaging in commercial
                                                prohibition of texting while driving a                   Issued on: September 17, 2010.                       transactions with, such vessels.
                                                commercial motor vehicle—                                                                                     DATES: Effective October 27, 2010.
                                                                                                        Anne S. Ferro,
                                                   (1) General rule. A driver who is                                                                          ADDRESSES: Copies of supporting
                                                convicted of violating the prohibition of               Administrator.
                                                                                                        [FR Doc. 2010–23861 Filed 9–24–10; 8:45 am]           documents that were prepared for this
                                                texting in § 392.80(a) of this chapter is                                                                     final rule, such as the proposed rule, are
                                                disqualified for the period of time                     BILLING CODE 4910–EX–P
                                                                                                                                                              available via the Federal e-Rulemaking
                                                specified in paragraph (e)(2) of this                                                                         portal, at http://www.regulations.gov.
                                                section.                                                                                                      These documents are also available from
                                                   (2) Duration. Disqualification for                   DEPARTMENT OF COMMERCE                                the Trade and Marine Stewardship
                                                violation of prohibition of texting while                                                                     Division, Office of International Affairs,
                                                driving a commercial motor vehicle—                     National Oceanic and Atmospheric
                                                                                                                                                              NMFS, 1315 East-West Highway, Silver
                                                   (i) Second violation. A driver is                    Administration
                                                                                                                                                              Spring, MD 20910.
                                                disqualified for 60 days if the driver is
                                                                                                        50 CFR Part 300                                       FOR FURTHER INFORMATION CONTACT: Mi
                                                convicted of two violations of
                                                § 392.80(a) of this chapter in separate                                                                       Ae Kim, Trade and Marine Stewardship
                                                                                                        [Docket No. 080228336–0435–02]                        Division, Office of International Affairs,
                                                incidents during any 3-year period.
                                                  (ii) Third or subsequent violation. A                                                                       NMFS ((phone) 301–713–9090, (fax)
                                                                                                        RIN 0648–AW09
                                                driver is disqualified for 120 days if the                                                                    301–713–9106, or (e-mail)
                                                driver is convicted of three or more                    Implementation of Regional Fishery                    mi.ae.kim@noaa.gov).
                                                violations of § 392.80(a) of this chapter               Management Organizations’ Measures                    SUPPLEMENTARY INFORMATION:
                                                in separate incidents during any 3-year                 Pertaining to Vessels That Engaged in
                                                                                                        Illegal, Unreported, or Unregulated                   Background
                                                period.
                                                                                                        Fishing Activities                                       On January 11, 2010, NMFS
                                                PART 392—DRIVING OF COMMERCIAL                                                                                published a proposed rule in the
                                                MOTOR VEHICLES                                          AGENCY:  National Marine Fisheries                    Federal Register (75 FR 1324) to address
                                                                                                        Service (NMFS), National Oceanic and                  vessels that are on the IUU vessel lists
                                                ■ 12. The authority citation for part 392               Atmospheric Administration (NOAA),                    maintained by RFMOs to which the
                                                continues to read as follows:                           Commerce.                                             United States is a party. As mentioned
                                                  Authority: 49 U.S.C. 13902, 31136, 31151,             ACTION: Final rule.                                   in the proposed rule, the effective
                                                31502; and 49 CFR 1.73.                                                                                       management of certain marine resources
                                                                                                        SUMMARY:    NMFS publishes this final                 is dependent on compliance with
                                                ■ 13. Amend part 392 by adding a new
                                                                                                        rule to implement international                       conservation and management measures
                                                subpart H to read as follows:
                                                                                                        conservation and management measures                  of RFMOs. The vessels that are included
                                                Subpart H—Limiting the Use of                           that pertain to vessels that have been                on the IUU vessels lists were identified
                                                Electronic Devices                                      identified by any one of several regional             by RFMOs as having engaged in
                                                                                                        fishery management organizations                      activities that undermine the
                                                § 392.80   Prohibition against texting.                 (RFMOs), identified below, as having                  effectiveness of conservation and
                                                   (a) Prohibition. No driver shall engage              engaged in illegal, unreported, and                   management measures. Examples of
                                                in texting while driving.                               unregulated (IUU) fishing activities and              such IUU fishing activity include:
                                                   (b) Motor Carriers. No motor carrier                 added to IUU vessel lists. The United                    • Fishing in an RFMO’s management
                                                shall allow or require its drivers to                   States is a member of, and obligated to               (or convention) area without
                                                engage in texting while driving.                        implement measures adopted by, the                    authorization;
                                                   (c) Definition. For the purpose of this              International Commission for the                         • Failing to record or declare their
                                                section only, driving means operating a                 Conservation of Atlantic Tunas (ICCAT),               catches, or making false reports;
                                                commercial motor vehicle, with the                      Commission for the Conservation of                       • Using prohibited fishing gear in
                                                motor running, including while                          Antarctic Marine Living Resources                     contravention of conservation measures;
mstockstill on DSKH9S0YB1PROD with RULES




                                                temporarily stationary because of traffic,              (CCAMLR), Northwest Atlantic                          or
                                                a traffic control device, or other                      Fisheries Organization (NAFO), Western                   • Transshipping with, or
                                                momentary delays. Driving does not                      and Central Pacific Fisheries                         participating in joint operations with,
                                                include operating a commercial motor                    Commission (WCPFC), Inter-American                    re-supplying, or re-fueling vessels
                                                vehicle with or without the motor                       Tropical Tuna Commission (IATTC),                     included in IUU vessel lists.
                                                running when the driver moved the                       and the Agreement on the International                   The proposed rule was open for
                                                vehicle to the side of, or off, a highway,              Dolphin Conservation Program (AIDCP).                 public comment through February 25,


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