"FMCSA Ruling on Texting"
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. mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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. mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59129 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 mstockstill on DSKH9S0YB1PROD with RULES 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, VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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. mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES * $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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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) * * * mstockstill on DSKH9S0YB1PROD with RULES VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 mstockstill on DSKH9S0YB1PROD with RULES § 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. VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 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 firstname.lastname@example.org). 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, VerDate Mar<15>2010 16:28 Sep 24, 2010 Jkt 220001 PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1