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[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Proposed Rules]
[Page 16391-16404]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-29]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383, 384, 390, 391, and 392
[Docket No. FMCSA-2009-0370]
RIN 2126-AB22
Limiting the Use of Wireless Communication Devices
AGENCY: Federal Motor Carrier Safety Administration, DOT.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to prohibit texting by commercial motor vehicle (CMV) drivers
while operating in interstate commerce and to impose sanctions,
including civil penalties and disqualification from operating CMVs in
interstate commerce, for drivers who fail to comply with this rule.
Additionally, motor carriers would be prohibited from requiring or
allowing their drivers to engage in texting while driving. FMCSA also
proposes amendments to its commercial driver's license (CDL)
regulations to add to the list of disqualifying offenses a conviction
under State or local laws, regulations, or ordinances that prohibit
texting by CDL drivers while operating a CMV, including school bus
drivers. Recent research commissioned by FMCSA shows that the odds
ratio of being involved in a safety-critical event (e.g., crash, near-
crash, lane departure) is 23.2 times greater for drivers who engage in
texting while driving than for those who do not. This rulemaking would
increase safety on the Nation's highways by reducing the prevalence of
or preventing certain truck- and bus-related crashes, fatalities, and
injuries associated with distracted driving.
DATES: Comments and related material must be received on or before May
3, 2010.
ADDRESSES: You may submit comments identified by docket number FMCSA-
2009-0370 using any one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Fax: 202-493-2251.
Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rule, contact Mr. Brian Routhier, Transportation Specialist,
Federal Motor Carrier Safety Administration, Vehicle and Roadside
Operation Division, at 202-366-1225 or Brian.Routhier@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Abbreviations
III. Background
A. Legal Authority
B. Overview of Driver Distraction and Texting
C. Support for a Texting Prohibition
D. Studies on Driver Distraction
E. Existing Texting Bans by Federal, State, and Local Government
IV. Discussion of Proposed Rule
V. Regulatory Analyses
I. Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials. All comments received will
be posted without change to http://www.regulations.gov and will include
any personal information you provide.
Pilot Project on Open Government and the Rulemaking Process
On January 21st, 2009, President Obama issued a Memorandum on
Transparency and Open Government in which he described how: ``public
engagement enhances the Government's effectiveness and improves the
quality of its decisions. Knowledge is widely dispersed in society, and
public officials benefit from having access to that dispersed
knowledge.''
To support the President's open government initiative, DOT has
partnered with the Cornell eRulemaking Initiative (CeRI) in a pilot
project, Regulation Room, to discover the best ways of using Web 2.0
and social networking technologies to: (1) Alert the public, including
those who sometimes may not be aware of rulemaking proposals, such as
individuals, public interest groups, small businesses, and local
government entities that rulemaking is occurring in areas of interest
to them; (2) increase public understanding of each proposed rule and
the rulemaking process; and (3) help the public formulate more
effective individual and collaborative input to DOT. Over the course of
several rulemaking initiatives, CeRI will use different Web
technologies and approaches to enhance public understanding and
participation, work with DOT to evaluate the advantages and
disadvantages of these techniques, and report their findings and
conclusions on the most effective use of social networking technologies
in this area.
DOT and the Obama Administration are striving to increase effective
public involvement in the rulemaking process and strongly encourage all
parties interested in this rulemaking to visit the Regulation Room Web
site, http://www.regulationroom.org, to learn about the rule and the
rulemaking process, to discuss the issues in the rule with other
persons and groups, and to participate in drafting comments that will
be submitted to DOT. In this rulemaking, CeRI will submit to the
rulemaking docket a Summary of the discussion that occurs on the
Regulation Room site; participants will have the chance to review a
draft and suggest changes before the Summary is submitted. Participants
who want to further develop ideas contained in the Summary, or raise
additional points, will have the opportunity to collaboratively draft
joint comments that will be also be submitted to the rulemaking docket
before the comment period closes.
Note that Regulation Room is not an official DOT Web site, and so
participating in discussion on that site is not the same as commenting
in the rulemaking docket. The Summary of discussion and any joint
comments
[[Page 16392]]
prepared collaboratively on the site will become comments in the docket
when they are submitted to DOT by CeRI. At any time during the comment
period, anyone using Regulation Room can also submit individual views
to the rulemaking docket through the Federal rulemaking portal
Regulations.gov, or by any of the other methods identified at the
beginning of this Notice.
For questions about this project, please contact Brett Jortland in
the DOT Office of General Counsel at 202-421-9216 or
brett.jortland@dot.gov.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2009-0370), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu, select
``Proposed Rules,'' insert ``FMCSA-2009-0370'' in the ``Keyword'' box,
and click ``Search.'' When the new screen appears, click on ``Submit a
Comment'' in the ``Actions'' column. If you submit your comments by
mail or hand delivery, submit them in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you
submit comments by mail and would like to know that they reached the
facility, please enclose a stamped, self-addressed postcard or
envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble,
available in the docket, go to http://www.regulations.gov and click on
the ``read comments'' box in the upper right hand side of the screen.
Then, in the ``Keyword'' box insert ``FMCSA-2009-0370'' and click
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions''
column. Finally, in the ``Title'' column, click on the document you
would like to review. If you do not have access to the Internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the Department of Transportation
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
C. Privacy Act
Anyone may search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review DOT's complete Privacy Act
Statement in the Federal Register notice published on April 11, 2000
(65 FR 19476).
II. Abbreviations
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AAMVA.................................. American Association of Motor
Vehicle Administrators.
ATA.................................... American Trucking Association.
CDL.................................... Commercial Driver's License.
CFR.................................... Code of Federal Regulations.
CMV.................................... Commercial Motor Vehicle.
CTA.................................... Chicago Transit Authority.
DOT.................................... Department of Transportation.
FARS................................... Fatality Analysis Reporting
System.
FMCSA.................................. Federal Motor Carrier Safety
Administration.
FMCSRs................................. Federal Motor Carrier Safety
Regulations.
FR..................................... Federal Register.
GES.................................... General Estimates System.
MCSAC.................................. Motor Carrier Safety Advisory
Committee.
MCSAP.................................. Motor Carrier Safety Assistance
Program.
MCSIA.................................. Motor Carrier Safety
Improvement Act of 1999.
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.
NSC.................................... National Safety Council.
NTSB................................... National Transportation Safety
Board.
OMB.................................... Office of Management and
Budget.
PDA.................................... Personal Digital Assistant.
s...................................... seconds.
Sec. ................................. Section symbol.
TCA.................................... Truckload Carriers Association.
U.S.C.................................. United States Code.
VTTI................................... Virginia Tech Transportation
Institute.
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III. Background
A. Legal Authority
FMCSA proposes: (1) To prohibit texting using electronic devices by
certain drivers while operating CMVs in interstate commerce; (2) to
provide sanctions for certain drivers convicted of texting while
operating a CMV in interstate commerce, including civil penalties and/
or disqualification from driving CMVs, as defined in 49 CFR 390.5, for
a specified period of time; and (3) to provide sanctions for CDL
drivers convicted of violating a State or local law or ordinance
prohibiting texting while operating a CMV, specifically, a
disqualification for a specified period of time from operating any CMV.
The authority for this proposed rule derives from the Motor Carrier
Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the
Commercial Motor Vehicle
[[Page 16393]]
Safety Act of 1986 (1986 Act), 49 U.S.C. chapter 313.
The 1984 Act (Pub. L. 98-554, Title II, 98 Stat. 2832, Oct. 30,
1984) provides authority to regulate the safety of operations of CMV
drivers and motor carriers and vehicle equipment. It requires the
Secretary of Transportation to ``prescribe regulations on commercial
motor vehicle safety. The regulations shall prescribe minimum safety
standards for commercial motor vehicles'' (49 U.S.C. 31136(a)).
Although this authority is very broad, the 1984 Act also includes
specific requirements:
At a minimum, the regulations shall ensure that--(1) commercial
motor vehicles are maintained, equipped, loaded, and operated
safely; (2) the responsibilities imposed on operators of commercial
motor vehicles do not impair their ability to operate the vehicles
safely; (3) the physical condition of operators of commercial motor
vehicles is adequate to enable them to operate the vehicles safely;
and (4) the operation of commercial motor vehicles does not have a
deleterious effect on the physical condition of the operators. Id.
This proposed rule is based primarily on 49 U.S.C. 31136(a)(1),
which requires regulations that ensure that CMVs are operated safely,
and secondarily on section 31136(a)(2), to the extent that drivers'
texting activities might impact their ability to operate CMVs safely.
The changes proposed in this NPRM would improve the safety of drivers
operating CMVs. This NPRM does not address the physical condition of
drivers (49 U.S.C. 31136(a)(3)), nor does it impact possible physical
effects caused by driving CMVs (49 U.S.C. 31136(a)(4)).
The applicability to CMV drivers of the relevant provisions of the
Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR subtitle B,
chapter III, subchapter B), is governed by whether the drivers involved
are employees operating a CMV. The 1984 Act defines a CMV as a self-
propelled or towed vehicle used on the highways to transport persons or
property in interstate commerce; and that either: (1) Has a gross
vehicle weight/gross vehicle weight rating of 10,001 pounds or greater;
(2) is designed or used to transport more than 8 passengers (including
the driver) for compensation; (3) is designed or used to transport more
than 15 passengers, not for compensation; or (4) is transporting any
quantity of hazardous materials requiring placards to be displayed on
the vehicle (49 U.S.C. 31132(1)). All employees operating CMVs are
subject to the FMCSRs, except those who are employed by Federal, State,
or local governments (49 U.S.C. 31132(2)).
In addition to the statutory exemption of government employees,
there are several other regulatory exemptions in the FMCSRs that are
authorized under the 1984 Act, including one for school bus operations
(49 CFR 390.3(f)(1) and (3)-(7)). The school bus operations exemption
only applies to interstate transportation of school children and/or
school personnel between home and school. This exemption is not based
on any statutory provisions, but is instead a discretionary rule
promulgated by the Agency. Therefore, FMCSA has authority to modify the
exemption. Modification of the school bus operations exemption requires
the Agency to find that such action ``is necessary for public safety,
considering all laws of the United States and States applicable to
school buses'' (former 49 U.S.C. 31136(e)(1)).\1\ Other than
transportation covered by statutory exemptions, FMCSA has authority to
prohibit texting by drivers operating CMVs, as defined above.
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\1\ Former section 31136(e)(1) was amended by section 4007(c) of
the Transportation Equity Act for the 21st Century, Public Law 105-
178, 112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21
also provides that the amendments made by section 4007(c) ``shall
not apply to or otherwise affect a waiver, exemption, or pilot
program in effect on the day before the date of enactment of [TEA-
21] under * * * section 31136(e) of title 49, United States Code.''
Section 4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49
U.S.C. 31136). The exemption for school bus operations in 49 CFR
390.3(f)(1) became effective on November 15, 1988, and was adopted
pursuant to section 206(f) of the 1984 Act, later codified as
section 31136(e) (Federal Motor Carrier Safety Regulations; General,
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by
FMCSA affecting the school bus operations exemption would require
the Agency to comply with former section 31136(e)(1).
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Violations of such a prohibition may include civil penalties
imposed on drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A),
49 CFR 386.81 and App. B, ] A(4)). Disqualification of a CMV driver for
violations of the Act and its regulations is also within the scope of
the Agency's authority under the 1984 Act. Such disqualifications are
specified by regulation for other violations (49 CFR 391.15). In
summary, both a texting prohibition and associated sanctions, including
civil penalties and disqualifications, are authorized by statute and
regulation for operators of CMVs, as defined above, in interstate
commerce, with limited exceptions. However, before prescribing any
regulations under the 1984 Act, FMCSA must consider their costs and
benefits (49 U.S.C. 31136(c)(2)(A)).
The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct.
27, 1986), which authorized creation of the CDL program, is primarily
the basis for licensing programs for certain large CMVs. There are
several key distinctions between the authority conferred under the 1984
Act and that under the 1986 Act. First, the CMV for which a CDL is
required is defined under the 1986 Act, in part, as a motor vehicle
operating ``in commerce,'' a term separately defined to cover broadly
both interstate commerce and operations that ``affect'' interstate
commerce (49 U.S.C. 31301(2), (4)). Also under the 1986 Act, a CMV
means a motor vehicle used in commerce to transport passengers or
property that: (1) Has a gross vehicle weight/gross vehicle weight
rating of 26,000 pounds or greater; (2) is designed to transport 16 or
more passengers including the driver; or (3) is used to transport
certain quantities of ``hazardous materials,'' as defined in 49 CFR
383.5 (49 U.S.C. 31301(4)). In addition, a provision in the FMCSRs
implementing the 1986 Act recognizes that all school bus drivers
(whether government employees or not) and other government employees
operating vehicles requiring a CDL (i.e., vehicles above 26,000 pounds
in most States, or designed to transport 16 or more passengers) are
subject to the CDL standards set forth in 49 CFR 383.3(b).
There are no statutory exceptions from coverage under the 1986 Act.
There are several regulatory exceptions, which include the following
individuals: active duty military service members who operate a CMV for
military purposes (a mandatory exemption for the States to follow) (49
CFR 383.3(c)); farmers, firefighters, and CMV drivers employed by a
unit of local government for the purpose of snow/ice removal; and
persons operating a CMV for emergency response activities (all of which
are permissive exemptions for the States to implement at their
discretion) (49 CFR 383.3(d)). Certain other drivers would be issued
restricted CDLs under 49 CFR 383.3(e)-(g); such drivers may be covered
by a texting disqualification under the 1986 Act.
The 1986 Act does not expressly authorize the Agency to adopt
regulations governing the safety of operations of CMVs by drivers
required to obtain a CDL. Most of these drivers are subject to safety
regulations under the 1984 Act, as described above. However, the 1986
Act does authorize disqualification of CDL drivers. Specific authority
exists for disqualification for various types of offenses by CDL
drivers. This is true even if they are operating a CMV illegally
because they have not obtained a CDL. Related rulemaking authority
exists to include serious traffic violations as grounds for
[[Page 16394]]
such disqualifications (49 U.S.C. 31301(12) and 31310).
Further, in addition to specifically enumerated ``serious traffic
violations,'' the 1986 Act allows FMCSA to designate additional
violations by rulemaking if the underlying offense is based on the CDL
driver committing a violation of a ``State or local law on motor
vehicle traffic control'' (49 U.S.C. 31301(12)(G)). The FMCSRs state,
however, that unless and until a CDL driver is convicted of the
requisite number of specified offenses within a certain time frame
(described below), the required disqualification may not be applied (49
CFR 383.5 (defining ``conviction'' and ``serious traffic violation'')
and 383.51(c)).
Under the statute, a driver who, in a 3-year period, commits 2
serious traffic violations involving a CMV operated by the individual
must be disqualified from operating a CMV for at least 60 days. A
driver who, in a 3-year period, commits 3 or more serious traffic
violations involving a CMV operated by the individual must be
disqualified from operating a CMV for at least 120 days (49 U.S.C.
31310(e)(1)-(2)). FMCSA has determined that violations by CDL drivers
of State motor vehicle traffic control laws prohibiting texting while
driving CMVs should result in a disqualification under this provision,
because texting results in distracted driving and increases the risk of
CMV crashes, fatalities, and injuries. Consequently, under its
statutory authority to find that the violation of a State texting law
constitutes a serious traffic violation for CMV drivers, FMCSA may
exercise its rulemaking authority to address this major safety risk by
requiring the States to disqualify CDL drivers who violate such laws.
FMCSA is authorized to carry out these statutory provisions by
delegation from the Secretary of Transportation as provided in 49 CFR
1.73(e) and (g).
B. Overview of Driver Distraction and Texting
This rulemaking addresses one type of driver distraction. Driver
distraction can be defined as the voluntary or involuntary diversion of
attention from the primary driving tasks due to an object, event, or
person that shifts the attention away from the fundamental driving
task. The diversion reduces a driver's situational awareness, decision
making, or performance and it may result in a crash, near-crash, or
unintended lane departure by the driver.
In an effort to understand and mitigate crashes associated with
driver distraction, the National Highway Traffic Safety Administration
(NHTSA) has been researching driver distraction with respect to both
behavioral and vehicle safety countermeasures. Researchers and writers
classify distraction into various categories, depending on the nature
of their work. In work involving equipment such as vehicles, one
distraction classification system includes three categories: visual
(taking one's eyes off the road), physical (taking one's hands off the
wheel), and cognitive (thinking about something other than the road/
driving). Texting while driving applies to these three types of driver
distraction (visual, physical, and cognitive), and thus may pose a
considerably higher safety risk than other sources of driver
distraction.
Prevalence of Texting
Texting is a relatively new phenomenon, growing dramatically among
cell phone and personal digital assistant (PDA) users. The Department
recognizes that the problem is growing worse, especially with young
drivers on our roadways, as noted in a Pew Research Center Report,
``Teens and Distracted Driving.'' \2\ According to the CTIA, The
Wireless Association, the number of text messages transmitted by its
members' customers increased from 32.6 billion in the first 6 months of
2005 to 740 billion in the first 6 months of 2009. This represents a
2,200 percent increase in 5 years. While FMCSA's research reveals
significant insight into the safety risks associated with texting, the
Agency does not have, at this time, data on the prevalence of texting
by motorists in general or CMV drivers specifically. FMCSA requests
that commenters share with the Agency any data and studies on texting
by CMV drivers.
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\2\ Madden, M. & Lenhart, A. (November 2009). Teens and
distracted driving. Pew Research Center's Pew Internet and American
Lifer Project. Retrieved January 24, 2010 from: http://
www.pewinternet.org//media//Files/Reports/2009/PIP_Teens_and_
Distracted_Driving.pdf.
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Considering the alarming increase in texting, FMCSA believes that
texting by CMV drivers while operating on public roads has the
potential of becoming a widespread safety problem in the absence of an
explicit Federal prohibition and that this inherently unsafe practice
should be prohibited to reduce the risks of crashes, injuries, and
fatalities.
FMCSA solicits comments on definition, causes, and prevalence of
``distracted driving''.
C. Support for a Texting Prohibition
There is an overwhelming amount of public support for a ban on
texting, or other distracting behaviors, while operating a motor
vehicle. It is likely that most Americans have either had first hand
experience with or know someone who has had a motor vehicle near-crash
event involving a distracted driver. FMCSA and other U.S. Department of
Transportation (DOT) operating administrations have been studying the
distracted driving issue for decades. With the exponentially increasing
use of electronic devices, and numerous crashes and other incidents
related to distracted driving in recent years, expedited Federal action
is required. Because of the safety risks, FMCSA is addressing the issue
of texting through a rulemaking as quickly as possible, which will
include a review of the comments received in response to this NPRM.
FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
Section 4144 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005) required the Secretary of
Transportation to establish a Motor Carrier Safety Advisory Committee
(MCSAC). The committee provides advice and recommendations to the FMCSA
Administrator on motor carrier safety programs and regulations and
operates in accordance with the Federal Advisory Committee Act (5
U.S.C. App. 2).
In its March 27, 2009, report to FMCSA, ``Developing a National
Agenda for Motor Carrier Safety,'' the MCSAC recommended that FMCSA
adopt new Federal rules concerning distracted driving, including
texting.\3\ The MCSAC believed the available research shows that
cognitive distractions pose a safety risk and that there will be
increases in crashes from cell phone use and texting unless the problem
is addressed. Therefore, one of MCSAC's recommendations for the
National Agenda for Motor Carrier Safety was that FMCSA initiate a
rulemaking to prohibit texting while driving.
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\3\ Parker, David R., Chair, Motor Carrier Safety Advisory
Committee (March 27, 2009). Letter to Rose A. McMurray on MCSAC
national agenda for motor vehicle safety. Retrieved January 11,
2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-
01FinalReportandLettertoAdministrator090428.pdf.
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Distracted Driving Summit
The information and feedback DOT received during its Distracted
Driving Summit, held September 30--October 1, 2009, in Washington, DC
demonstrated both a need and widespread support for a ban against
texting while driving.
[[Page 16395]]
Attendees included safety experts; researchers; elected officials,
including four United States Senators and several State legislators;
safety advocacy groups; senior law enforcement officials; the
telecommunications industry; and the transportation industry.
Summit participants shared their expertise, experiences, and ideas
for reducing distracted driving behaviors. They addressed the safety
risk posed by this growing problem across all modes of surface
transportation. At the conclusion of the Summit, U.S. Transportation
Secretary Ray LaHood announced a series of concrete actions the Obama
Administration and DOT are taking to address distracted driving. On
October 1, 2009, the President issued Executive Order 13513, which
prohibited texting by Federal employees (details are discussed later in
this preamble).
Actions following the Summit included the DOT's plan to immediately
start rulemakings that would ban texting and restrict, to the extent
possible, the use of cell phones by truck and interstate bus operators,
as well as to initiate rulemaking by the Federal Rail Administration
(FRA) to codify provisions of the FRA's Emergency Order No. 26
regarding restricting distracting electronic devices (see discussion
below in Part E). As a result of the Summit, and based on data from
studies on distracted driving, FMCSA is considering a number of actions
to combat distracted driving by CMV drivers. Specifically, in addition
to this rulemaking, FMCSA is considering future rulemaking actions that
would address whether to limit the use of cell phones and other
interactive devices in CMVs.
Secretary LaHood stated: ``Keeping Americans safe is without
question the Federal government's highest priority--and that includes
safety on the road, as well as on mass transit and rail.'' In addition,
the Secretary pledged to work with Congress to ensure that the issue of
distracted driving is appropriately addressed.
General Public
Several surveys show that there is public support for a texting
prohibition. For example, a survey in December 2008 by the AAA
Foundation for Traffic Safety determined that 94.1 percent of drivers
consider it unacceptable for a driver to send text messages or e-mail
while driving while 86.7 percent consider text messaging and e-mailing
by drivers to be a very serious threat to their personal safety.\4\ A
CBS News/New York Times poll reported that 90 percent of Americans
think texting behind the wheel should be outlawed. Over 94 percent of
those who admit to texting or e-mailing while driving acknowledge that
it makes them at least a little bit more likely to be involved in a
crash.\5\ Finally, a nationally representative survey by Nationwide
Insurance,\6\ conducted in August 2009, found that 80 percent of
Americans support laws prohibiting text messaging or e-mailing while
driving.
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\4\ AAA Foundation for Traffic Safety (October 12, 2009). Safety
culture: text messaging and cell phone use while driving. Retrieved
January 11, 2010, from: http://www.aaafoundation.org/pdf/
TextingFS091012.pdf.
\5\ Connelly, M. (November 1, 2009). Many in U.S. want texting
at the wheel to be illegal. NYTimes.com. Retrieved January 11, 2010,
from: http://www.nytimes.com/2009/11/02/technology/
02textingside.html.
\6\ Gillespie, C. (August 31, 2009). New Nationwide Insurance
survey shows overwhelming support for laws banning texting while
driving: Data suggests legislation alone will not solve the problem.
Nationwide.com. Retrieved January 11, 2010, from: http://
www.nationwide.com/newsroom/twd-survey-results.jsp.
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Safety Advocacy Organizations
Many safety advocacy groups have voiced support for a prohibition
on texting while driving. In January 2009, the National Safety Council
(NSC) called for a nationwide prohibition on all cell phone use while
driving.\7\ The NSC is focused on alerting the American public to the
fact that different distractions have different levels of crash risk.
NSC stated that sending text messages has a much higher risk than most
other actions that drivers take while driving. Additionally, Advocates
for Highway and Auto Safety applauded DOT's effort to ban texting by
truck and motor coach drivers.\8\
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\7\ National Safety Council, (n.d.). Distracted driving.
Retrieved January 11, 2010, from: http://www.nsc.org/safety_road/
Distracted_Driving/Pages/distracted_driving.aspx.
\8\ Gillan, J.S. (October 1, 2009). Safety Advocates respond to
U.S. DOT Secretary's announcement on measures to reduce distracted
driving by commercial operators. Retrieved January 11, 2010, from
the Advocates for Highway and Auto Safety Web site: http://
www.saferoads.org/files/file/
Distracted%20Driving%20Statement%20by%20Judith%20Stone%20October%201,
%202009.pdf.
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Transportation Industry Associations
The American Trucking Association's (ATA) executive committee voted
overwhelmingly to support S. 1536 to prohibit texting (while driving by
all motorists).\9\ ATA believes that the use of hand-held electronic
devices and the act of texting with such devices while a motor vehicle
is in motion should be prohibited.\10\
---------------------------------------------------------------------------
\9\ American Trucking Associations (October 14, 2009). ATA
leaders vote overwhelmingly to support anti-texting bill. Retrieved
January 11, 2010, from: http://www.truckline.com/pages/
article.aspx?id=52%2F0599B3C5-1DA2-463F-8FE5-AF9814303C64.
\10\ American Trucking Associations (October 29, 2009).
Addressing the problem of distracted driving. Written testimony to
the Subcommittee on Highways and Transit, U.S. House of
Representatives' Transportation and Infrastructure Committee.
Retrieved January 11, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
---------------------------------------------------------------------------
Many fleets do not allow drivers to operate any electronic devices
at all while the vehicle is moving, including dispatching equipment.
ATA conducted an opinion survey of its safety committees on the use of
``non-integrated electronic devices.'' From the responses of these
industry leaders, ATA found that 67 percent of respondents had a policy
restricting or limiting the use of portable electronic devices while
driving. United Parcel Service, Inc. has an existing policy of no
distractions while behind the wheel (e.g., two hands on the wheel and
no two-way communication) and FedEx does not allow drivers to use any
electronic device while operating FedEx vehicles.\11\ Additionally,
ExxonMobil and Shell are examples of large companies that prohibit
employees' use of any type of cell phone while driving during work
hours.\12\ Because numerous large commercial trucking operations
already have policies that prohibit the use of portable electronic
devices while driving, which would presumably include texting, a
prohibition on texting is not expected to have an adverse impact on
trucking fleets.
---------------------------------------------------------------------------
\11\ Halsey, A. (October 2, 2009). Obama to Federal employees:
Don't text and drive. Washingtonpost.com. Retrieved January 11,
2010, from: http://www.washingtonpost.com/wp-dyn/content/article/
2009/10/01/AR2009100103447_pf.html.
\12\ Insurance Information Institute (December 2009). Cellphones
and driving. Retrieved January 11, 2010, from: http://www.iii.org/
IU/Cellphone-and-driving/.
---------------------------------------------------------------------------
FMCSA solicits comments on whether and how companies have
implemented policies on drivers' use of portable electronic devices
while driving.
School Bus Operations
School bus operations have been the focus of distracted driving
policies; and many cities, towns, and counties prohibit cell phone use
or texting by school bus operators. The National Association of State
Directors of Pupil Transportation Services, in a letter to the U.S.
Senate dated August 7, 2009, stated that it supports S. 1536, which
would require States to prohibit all
[[Page 16396]]
motorists from writing, sending, or reading text messages while
driving.\13\
---------------------------------------------------------------------------
\13\ Hood, C., President of the National Association of State
Directors of Pupil Transportation Services (August 7, 2009). Letter
to Senators Schumer, Menendez, Hagan and Landrieu. Retrieved January
11, 2010, from: http://www.nasdpts.org/documents/alert_act-nasdpts-
support.pdf.
---------------------------------------------------------------------------
Transit Agencies
The importance of the distracted driving issue has led virtually
all transit agencies to ban the use of cell phones and electronic
devices or specifically to ban texting while operating a vehicle in
passenger service. For example, the Chicago Transit Authority (CTA)
prohibits texting by employees and discharges offenders. Furthermore,
several large transit agencies (Massachusetts Bay Transportation
Authority, CTA, Greater Cleveland Region Transit Authority) have
prohibited operators from carrying cell phones or other electronic
devices in the cab, presumably eliminating texting.
While FMCSA is aware that many organizations have policies on
texting, FMCSA solicits further comments on texting policy and
enforcement and on the applicability of State laws and local ordinances
to school bus drivers and transit employees.
D. Studies on Driver Distraction
On November 14, 2004, a motorcoach crashed into a bridge overpass
on the George Washington Memorial Parkway in Alexandria, Virginia. This
crash was the impetus for a National Transportation Safety Board (NTSB)
investigation and subsequent recommendation to FMCSA regarding cell
phone use by passenger-carrying CMVs. In a letter to NTSB dated March
5, 2007, the Agency agreed to initiate a study to assess:
The potential safety benefits of restricting cell phone
use by drivers of passenger-carrying CMVs,
The applicability of an NTSB recommendation to property-
carrying CMV drivers,
Whether adequate data existed to warrant a rulemaking, and
The availability of statistically meaningful data
regarding cell phone distraction.
Driver Distraction in Commercial Vehicle Operations (``the VTTI
Study'')--Olson et al., 2009 \14\
---------------------------------------------------------------------------
\14\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra,
J. (2009) Driver distraction in commercial vehicle operations.
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor
Carrier Safety Administration, July 2009. Retrieved October 20,
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-
reports.aspx?
---------------------------------------------------------------------------
Under contract with FMCSA, the Virginia Tech Transportation
Institute (VTTI) recently completed its ``Driver Distraction in
Commercial Vehicle Operations'' study \15\ and released the final
report on October 1, 2009. The purpose of the study was to investigate
the prevalence of driver distraction in CMV safety-critical events
(i.e., crashes, near-crashes, lane departures, as explained in the VTTI
study) recorded in a naturalistic data set that included over 200 truck
drivers and 3 million miles of data. The dataset was obtained by
placing monitoring instruments on vehicles and recording the behavior
of drivers conducting real-world revenue-producing operations. Key
findings were that drivers were engaged in tertiary (non-driving
related) tasks in 71 percent of crashes, 46 percent of near-crashes,
and 60 percent of all safety-critical events. Tasks that significantly
increased risk included texting, looking at a map, writing on a
notepad, or reading.
---------------------------------------------------------------------------
\15\ The formal peer review of the ``Driver Distraction in
Commercial Vehicle Operations Draft Final Report'' was completed by
a team of three technically qualified peer reviewers who are
qualified (via their experience and educational background) to
critically review driver distraction-related research.
---------------------------------------------------------------------------
Odds ratios (OR) were calculated to identify tasks that were high
risk. For a given task, an odds ratio of ``1.0'' indicated the task or
activity was equally likely to result in a safety-critical event as it
was a non-event or baseline driving scenario. An odds ratio greater
than ``1.0'' indicated a safety-critical event was more likely to
occur, and odds ratios of less than ``1.0'' indicated a safety-critical
event was less likely to occur. The most risky behavior identified by
the research was ``text message on cell phone,'' \16\ with an odds
ratio of 23.2. This means that the odds of being involved in a safety-
critical event are 23.2 times greater for drivers who text message
while driving than for those who do not. Texting drivers took their
eyes off the forward roadway for an average of 4.6 seconds during the
6-second interval surrounding a safety-critical event. At 55 mph (or
80.7 feet per second), this equates to a driver traveling 371 feet, the
approximate length of a football field, including the end zones,
without looking at the roadway. At 65 mph (or 95.3 feet per second),
the driver would have traveled approximately 439 feet without looking
at the roadway. This clearly creates a significant risk to the safe
operation of the CMV.
---------------------------------------------------------------------------
\16\ Although the final report does not elaborate on texting,
the drivers were engaged in the review, preparation and transmission
of, typed messages via wireless phones.
---------------------------------------------------------------------------
Other tasks that drew drivers' eyes away from the forward roadway
in the study involved the driver interacting with technology:
calculator (4.4 s), dispatching device (4.1 s), and cell phone dialing
(3.8 s). Technology-related tasks were not the only ones with high
visual demands. Non-technology tasks with high visual demands,
including some mundane or common activities, were: writing (4.2 s),
reading (4.3 s), looking at a map (3.9 s), and reaching for an object
(2.9 s).
The study further analyzed population attributable risk (PAR),
which incorporates the frequency of engaging in a task. If a task is
done more frequently by a driver or a group of drivers, it will have a
greater PAR percentage. Safety could be improved the most if a driver
or group of drivers were to stop performing a task with a high PAR. The
PAR percentage for texting is 0.7 percent, which means that 0.7 percent
of the incidence of safety-critical events are attributable to texting,
and thus, could be avoided by not 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 10.1 0.2
mirror)............................
Interact with/look at dispatching 9.9 3.1
device.............................
Write on pad, notebook, etc......... 9.0 0.6
Use calculator...................... 8.2 0.2
[[Page 16397]]
Look at map......................... 7.0 1.1
Dial cell phone..................... 5.9 2.5
Read book, newspaper, paperwork, 4.0 1.7
etc................................
Moderate Tertiary Task:
Use/reach for other electronic 6.7 0.2
device.............................
Other--Moderate (e.g, open medicine 5.9 0.3
bottle)............................
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.
A complete copy of the final report for this study is included in
the docket referenced at the beginning of this rulemaking notice.
In addition to FMCSA-sponsored research, the Agency has considered
other research reports and studies that highlight the safety risks of
distracted driving in general or of texting, specifically. These
studies conclude that texting is extremely risky and that it impairs a
driver's ability to respond to driving situations. Most of these
studies were small simulator studies, involving young automobile
drivers. But they provide support for the conclusions of the
comprehensive study of CMV operations commissioned by FMCSA and
conducted by VTTI. This information, which includes ongoing research,
is summarized below and FMCSA welcomes additional studies or data that
commenters may provide.
Text Messaging During Simulated Driving--Drews, et al., 2009 \17\
---------------------------------------------------------------------------
\17\ Drews, F.A., Yazdani, H., Godfrey, C.N., Cooper, J.M., &
Strayer, D.L. (Dec. 16, 2009). Text messaging during simulated
driving. Salt Lake City, Utah: The Journal of Human Factors and
Ergonomics Society Online First. Published as doi:10.1177/
0018720809353319. Retrieved December 22, 2009, from http://
hfs.sagepub.com/cgi/rapidpdf/
0018720809353319?ijkey=gRQOLrGlYnBfc&keytype=ref&siteid=sphfs.
---------------------------------------------------------------------------
This research aimed to identify the impact of text messaging on
simulated driving performance. Using a high fidelity driving simulator,
researchers measured the performance of 20 pairs of participants while:
(1) Only driving; and (2) driving and text messaging. Participants
followed a pace car in the right lane, which braked 42 times,
intermittently. Participants were 0.2 seconds slower in responding to
the brake onset when driving and text messaging, compared to driving-
only. There was no significant difference in responding to the brake
onset between entering and reading text messages, however. When drivers
are concentrating on texting of any sort, their reaction times to
braking events are significantly longer.
Driver Workload Effects of Cell Phone, Music Player, and Text Messaging
Tasks With the Ford SYNC Voice Interface Versus Handheld Visual-Manual
Interfaces (``The Ford Study'')--Shutko, et al., 2009 \18\
---------------------------------------------------------------------------
\18\ Shutko, J., Mayer, J., Laansoo, E., & Tijerina, L. (2009).
Driver workload effects of cell phone, music player, and text
messaging tasks with the Ford SYNC voice interface versus handheld
visual-manual interfaces (paper presented at SAE World Congress &
Exhibition, April 2009, Detroit, MI). Warrendale, PA: Society of
Automotive Engineers International. Available from SAE International
at: http://www.sae.org/technical/papers/2009-01-0786.
---------------------------------------------------------------------------
A recent study by Ford Motor Company \19\ involving 25 participants
compared using a hands-free voice interface to complete a task while
driving with using personal handheld devices (cell phone and music
player) to complete the same task while driving. Of particular interest
was the results of this study with regard to total eyes-off-road time
when texting while driving. The study found that texting, both sending
and reviewing a text, was extremely risky. The median total eyes-off-
road time when reviewing a text message on a handheld cell phone while
driving was 11 seconds. The median total eyes-off-road time when
sending a text message using a handheld cell phone while driving was 20
seconds.
---------------------------------------------------------------------------
\19\ The Engineering Meetings Board has approved this paper for
publication. It has successfully completed SAE's peer review process
under the supervision of the session organizer. This process
requires a minimum of three (3) reviews by industry experts.
---------------------------------------------------------------------------
The Effects of Text Messaging on Young Novice Driver Performance--
Hosking, et al., 2006 \20\
---------------------------------------------------------------------------
\20\ Hosking, S., Young, K., & Regan, M. (February 2006). The
effects of text messaging on young novice driver performance.
Victoria, Australia: Monash University Accident Research Centre.
Retrieved October 15, 2009, from: http://www.monash.edu.au/muarc/
reports/muarc246.pdf.
---------------------------------------------------------------------------
Hosking studied a very different driver population, but obtained
similar results. This study used an advanced driving simulator to
evaluate the effects of text messaging on 20 young, novice Australian
drivers. The participants were between 18 and 21 years old, and they
had been driving 6 months or less. Legislation in Australia prohibits
hand-held phones, but a large proportion of the participants said that
they use them anyway.
The young drivers took their eyes off the road while texting, and
they had a harder time detecting hazards and safety signs, as well as
maintaining the simulated vehicle's position on the road than they did
when not texting. While the participants did not reduce their speed,
they did try to compensate for the distraction of texting by increasing
their following distance. Nonetheless, retrieving and particularly
sending text messages had a detrimental effect on driving:
Difficulty maintaining the vehicle's lateral position on
the road.
Harder time detecting hazards.
Harder time detecting and responding to safety signs.
Drivers spent up to 400 percent more time with eyes off
the road than when not texting.
[[Page 16398]]
The Effect of Text Messaging on Driver Behavior: A Simulator Study--
Reed and Robbins, 2008 \21\
---------------------------------------------------------------------------
\21\ Reed, N. & Robbins, R. (2008). The effect of text messaging
on driver behaviour: A simulator study. Report prepared for the RAC
Foundation by Transport Research Laboratory. Retrieved January 12,
2010, http://www.racfoundation.org/files/
textingwhiledrivingreport.pdf.
---------------------------------------------------------------------------
The RAC Foundation commissioned this report \22\ to assess the
impact of text messaging on driver performance and the attitudes
surrounding that activity in the 17 to 25-year old driver category.
There were 17 participants in the study, aged 17 to 24. The results
demonstrated that driving was impaired by texting. Researchers reported
that ``failure to detect hazards, increased response times to hazards,
and exposure time to that risk have clear implications for safety.''
They reported an increased stopping distance of 12.5 meters, or three
car lengths, and increased variability of lane position.
---------------------------------------------------------------------------
\22\ The work described in this report was carried out in the
Human Factors and Simulation group of the Transport Research
Laboratory. The authors are grateful to Andrew Parkes who carried
out the technical review and auditing of this report.
---------------------------------------------------------------------------
Synthesis of Literature and Operating Safety Practices Relating to Cell
Phone/Personal Data Assistant Use in Commercial Truck and Bus
Operations--Bergoffen \23\
---------------------------------------------------------------------------
\23\ Bergoffen, G. (Final Report due Spring 2010). Synthesis of
literature and operating safety practices relating to cell phone/
personal data assistant use in commercial truck and bus operations.
Ongoing FMCSA Study.
---------------------------------------------------------------------------
The objectives of this ongoing research project are threefold.
First, the project will synthesize findings related to cell phone use
in automobiles and CMVs. Second, the project will identify current cell
phone practices, PDA use, including texting, and the magnitude of the
use in the motor carrier industry. FMCSA will consider how these car-
driver findings apply to truck and bus drivers and what led fleet
managers to restrict or manage cell phone and PDA use. Finally, the
project will identify the scope and objectives of ongoing related
studies, and any significant knowledge gaps that might influence a
regulatory approach.
Cell Phone Distraction in Commercial Trucks and Buses: Assessing
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \24\
---------------------------------------------------------------------------
\24\ Hickman, J. (Preliminary results available Spring 2010).
Cell phone distraction in commercial trucks and buses: Assessing
prevalence in conjunction with crashes and near-crashes. Ongoing
FMCSA study.
---------------------------------------------------------------------------
The purpose of this ongoing research is to conduct an analysis of
naturalistic data collected by DriveCam over a 1-year period.
Commercial trucks (3-axle and tractor-trailer) and buses will be the
target vehicles in the analyses. This will provide FMCSA with
descriptive data on the adverse consequences of cell phone use and
other distractions while driving, including texting. In addition,
DriveCam will re-review all valid cell phone events within the last 90
days to determine the frequency of the following cell phone variables:
dial cell phone, reach for cell phone, reach for Bluetooth/headset/
earpiece, talk/listen on hands-free cell phone, talk/listen on hand-
held cell phone, and text/e-mail/surf Web on cell phone. The results of
these analyses will provide information on the scope of cell phone use,
and other distractions, during valid safety events and crashes. FMCSA
will carefully review the applicability of any findings to the current
proposed rule.
E. Existing Texting Bans by Federal, State, and Local Governments
Executive Order 13513
The President immediately used the feedback from the DOT Summit on
Distracted Driving and issued an Executive Order titled ``Federal
Leadership on Reducing Text Messaging While Driving'' (74 FR 51225) on
October 1, 2009, which ordered that:
Federal employees shall not engage in text messaging (a) when
driving a Government Owned Vehicle, or when driving a Privately
Owned Vehicle while on official Government business, or (b) when
using electronic equipment supplied by the Government while driving.
The Executive Order is applicable to the operation of CMVs by
Federal government employees carrying out their duties and
responsibilities, or using electronic equipment supplied by the
government. This order also encourages contractors to comply while
operating CMVs on behalf of the Federal government.
Regulatory Guidance
On January 27, 2010, FMCSA issued regulatory guidance in the
Federal Register (75 FR 4305) concerning texting while driving a CMV in
interstate commerce. Specifically, it clarified that while there is not
an explicit prohibition on ``texting'' in Sec. 390.17, Additional
equipment and accessories, there is a general restriction against the
use of equipment and accessories that decrease the safety of operation
of a CMV. Because handheld or electronic devices brought into the CMV
are considered ``additional equipment and accessories'' and because
texting decreases safety through visual, cognitive, and manual
distraction, the use of electronic devices for texting by CMV operators
while driving in interstate commerce is prohibited by 49 CFR 390.17.
The guidance document was not intended as a substitute for notice-and-
comment rulemaking but rather, interpreted and explained the effect of
existing regulations on texting while driving. This NPRM, if adopted as
a final rule, would take the guidance a step further by establishing
more detailed, binding requirements on industry. Accordingly, we
encourage active participation and input from the public in this
rulemaking through the notice-and-comment process.
Federal Railroad Administration
On October 7, 2008, the Federal Railroad Administration (FRA)
published Emergency Order 26 (73 FR 58702). Pursuant to FRA's authority
under 49 U.S.C. 20102, 20103, the order, which took effect on October
1, 2008, restricts railroad operating employees from using distracting
electronic and electrical devices while on duty. Among other things,
the order prohibits both the use of cell phones and texting. FRA cited
numerous examples of the adverse impact that electronic devices can
have on safe operations. These examples included fatal accidents that
involved operators who were distracted while texting or talking on a
cell phone. In light of these incidents, FRA is imposing restrictions
on the use of such electronic devices, both through its order and a
rulemaking that seeks to codify the order.
State Restrictions
Texting while driving is prohibited in 19 States, the District of
Columbia, and Guam. A list can be found at the following DOT Web site:
http://www.distraction.gov/state-laws. Generally, the State
requirements are applicable to all drivers operating motor vehicles
within those jurisdictions, including CMV operators. Because some
States do not currently prohibit texting while driving, there is a need
for a Federal regulation to address the safety risks associated with
texting by CMV drivers. The Federal restriction would provide uniform
language applicable to CMV drivers engaged in interstate commerce,
regardless of the presence or absence of a State law or regulation.
Generally, State laws and regulations would remain in effect and could
continue to be enforced with regard to CMV drivers, provided those laws
and regulations are compatible with the Federal requirements. This
rulemaking would not affect the ability of States to institute new
prohibitions on texting while driving. For more information see
[[Page 16399]]
the Federalism section later in this document.
IV. Discussion of Proposed Rule
Federal Prohibition Against Texting by Interstate CMV Drivers
FMCSA proposes to prohibit CMV drivers who are operating in
interstate commerce from texting while driving. The Agency would
include definitions and add a driver disqualification provision for
interstate drivers convicted of violating the Federal rule.
This proposed rule would amend regulations in 49 CFR parts 390,
391, and 392. Generally, for CMV drivers subject to Parts 390, 391, and
392 of the FMCSRs, it would reduce the risks of distracted driving by
prohibiting texting by CMV drivers who are operating in interstate
commerce and impose sanctions, including civil penalties and
disqualification from operating CMVs in interstate commerce, for
drivers who fail to comply with this rule.
FMCSA acknowledges the concerns of motor carriers that have
invested significant resources in electronic dispatching tools and
fleet management systems; this rulemaking should not be construed as a
proposal to prohibit the use of such technology. The rulemaking should
also not be construed as a proposal to prohibit the use of cell phones
for purposes other than texting. The Agency will address the use of
these and other electronic devices while driving in separate notice-
and-comment rulemaking proceedings.
It is worth noting, however, that while fleet management systems
and electronic dispatching tools are used by many of the Nation's
largest trucking fleets, the Department believes safety-conscious fleet
managers would neither allow nor require their drivers to type or read
messages while driving. To the extent that there are fleets that
require drivers to type and read messages while they are driving, the
Agency will consider appropriate regulatory action to address the
safety problem.
FMCSA recognizes that the proposed amendments to its CDL
regulations would be applicable to Federal, State, or local government-
employed school bus drivers who are required to possess a CDL. The
explicit prohibition of texting while driving that would apply to CMV
drivers under 49 CFR Part 392 would not be applicable to Federal,
State, or local government-employed school bus drivers. The amendment
to the CDL disqualifying offenses, however, would apply to them if they
are convicted, while driving a school bus, of violating a State or
local law or ordinance concerning texting.
Finally, the proposed amendments to the Agency's CDL regulations
would be applicable to transit employees who are required to possess a
CDL. Because of the statutory exception, the explicit prohibition
against CMV drivers under 49 CFR Part 392 would not be applicable to
these transit employees, the amendment to the CDL disqualifying
offences would apply to them if they are convicted, while operating
their transit vehicle, of violating a State or local law or ordinance
concerning texting.
Section 390.5
The Agency proposes to add new definitions for the terms
``electronic device'' and ``texting,'' for general application. The
definition of ``driving'' would be incorporated into the prohibition of
texting while driving a CMV in the proposed new Sec. 392.80, in order
to restrict the use of the term to texting activities and to avoid
limiting the scope of the term as used in other provisions of the
FMCSRs.
The Agency did not incorporate explanatory adjectives such as
``handheld,'' ``portable,'' and ``personal'' that had been included in
other documents because the Agency wanted to focus on the behavior not
the device. Furthermore, the proposed texting definition clarifies that
non-texting functions, which smart phones and similar ``multi-
function'' devices can perform (e.g., Global Positioning System
capabilities and music playing), would not be prohibited by this
rulemaking.
Section 391.2
FMCSA would amend 49 CFR 391.2, which provides certain exceptions
to the requirements of Part 391 for custom farm operations, apiarian
industries, and specific farm vehicle drivers, to enable the Agency to
make violations of the Federal texting prohibition proposed today a
disqualifying offense for such drivers. While the explicit Federal
prohibition against texting would apply directly to these drivers, the
disqualification provision would not apply without this amendment to
the current exception under 49 CFR 391.2.
Section 391.15
The Agency would add a new paragraph (e) to this section to provide
for the disqualification of any driver convicted of 2 or more
violations of the new prohibition set forth in Sec. 392.80 from
operating a CMV in interstate commerce. The proposed change would
mirror the corresponding proposed new provisions governing the
disqualification of CDL drivers in Sec. 383.51(c). The required number
of convictions to cause a disqualification and the period of
disqualification would be the same: at least 60 days for the second
offense within 3 years and at least 120 days for 3 or more offenses
within 3 years. In addition, the first and each subsequent violation of
such a prohibition would be subject to civil penalties imposed on such
drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR
386.81 and App. B, ] A(4)).)
Section 392.80
In this section the Agency proposes a new prohibition against
texting while driving a CMV, as defined in 49 CFR 390.5. Furthermore,
this proposed rule states that motor carriers will not allow nor
require drivers to text while driving. FMCSA also includes a provision
in this proposed section to apply this new prohibition to ``school bus
operations notwithstanding the general exception in 49 CFR
390.3(f)(1).'' Therefore, school bus drivers who are employed by non-
government entities and who transport school children and/or school
personnel between home and school in interstate commerce would be
subject to the proposed prohibition. FMCSA has determined this proposed
rule is necessary for public safety regarding school bus transportation
by interstate motor carriers. A definition of driving is included in
the proposed rule.
FMCSA also proposes a provision in 49 CFR 390.3(f)(1) to clarify
that this new prohibition is not subject to the general exception for
``school bus operations'' (49 CFR 390.5). It thus makes it clear that
drivers engaged in school bus operations would be subject to both the
new prohibition and the new disqualification provisions.
The Agency proposes a limited exception to the texting prohibition
to allow CMV drivers to text if necessary to communicate with law
enforcement officials or other emergency services.
Federal Disqualification Standard for CDL Drivers
FMCSA proposes that any CDL driver operating a CMV (as defined in
Sec. 383.5) who is convicted of violating a State prohibition against
texting would be disqualified after his or her second conviction for
the texting offense or any serious traffic violation (as defined by
Sec. 383.51(c)). The CDL disqualifying offense would be applicable to
all persons who are required to possess a CDL, in accordance with the
requirements of 49 CFR part 383, and who are subject to a State or
local law or ordinance prohibiting texting. Therefore, the amendment to
the CDL rules would be applicable to drivers employed by Federal,
State, or local
[[Page 16400]]
government agencies, transit authorities, and school districts.
To assist in the enforcement of a texting prohibition for CMVs and
the application of the provisions for disqualification, the proposed
regulations would include definitions of the words ``driving,''
``electronic devices,'' and ``texting.'' These definitions would
provide clarity so that, for example, the operation of in-vehicle
controls or other portable devices while the vehicle is operating would
not be a texting violation.
Section 383.5
FMCSA proposes to add new definitions for the terms ``electronic
device'' and ``texting'' for application in part 383. The Agency
proposes a broad definition of electronic device in order to cover the
multitude of devices that allow users to enter and read text messages.
However, the Agency does not propose to prohibit the use of such
devices by CMV drivers when used for purposes other than texting. The
definition of texting would identify the type of activity that would be
construed to be prohibited by this rule.
Section 383.51
In Table 2, FMCSA would add a new serious traffic violation that
would result in a CDL driver being disqualified. This serious traffic
violation would be a conviction for violating a State or local law or
ordinance prohibiting texting while driving a CMV. FMCSA proposes to
add a description of what is considered ``driving'' for the purpose of
this disqualification. FMCSA notes that the conviction must involve
``texting'' while operating a CMV and excludes convictions for texting
by a CDL driver while operating a vehicle for which a CDL is not
required. The Agency's decision is consistent with the provisions of 49
U.S.C. 31310(e), which indicates the serious traffic violation must
occur while the driver is operating a CMV that requires a CDL; the
operative provisions in the revised table would limit the types of
violations that could result in a disqualification accordingly.
As proposed, every State that issues CDLs would be required to
impose this disqualification on a driver required to have a CDL issued
by that State whenever that CDL driver was convicted of the necessary
number of violations while operating in States where such conduct is
prohibited. This would be the case even if the issuing State did not
have its own law on motor vehicle traffic control prohibiting texting
while operating a CMV. See 49 U.S.C. 31310(e) and 31311(a)(15), and 49
CFR 384.218 and 384.219.
Section 384.301
A new paragraph (e) is proposed for addition to Sec. 384.301. It
would require all States that issue CDLs to implement the new
provisions proposed in Sec. 383.51(c) that relate to disqualifying CDL
drivers for violating the new serious traffic violation of texting
while driving a CMV.
State Compatibility
Motor Carrier Safety Assistance Program (MCSAP)
States that receive MCSAP grant funds would be required, as a
condition of receiving the grants, to adopt regulations on texting that
are compatible with final regulations issued as a result of this
rulemaking (49 U.S.C. 31102(a) and 49 CFR 350.201(a)). If a prohibition
on texting (such as proposed in Sec. 392.80) and the related
disqualification (such as proposed in Sec. 391.15(e)) are adopted by
FMCSA, States under MCSAP would have to adopt compatible regulations
applicable to both interstate and intrastate transportation as soon as
practicable, but not later than 3 years thereafter (49 CFR 350.331(d)).
If States do not adopt compatible regulations prohibiting texting while
driving a CMV and related disqualifications they may not receive full
MCSAP grant funding.
CDL Program
States that issue CDLs would be required to adopt and implement the
proposed CDL disqualification provisions that require disqualification
for two or more convictions of violating a State or local law or
ordinance prohibiting texting while driving a CMV. States should be in
compliance as soon as practicable, but not later than 3 years after
FMCSA adopts the disqualification provisions. If they do not comply,
they may be subject to the loss of up to 5 percent in the first year of
substantial non-compliance and up to 10 percent in subsequent years of
certain Federal-aid highway amounts apportioned to the State (49 U.S.C.
31311(a) and 31314).
V. Regulatory Analyses
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This proposed rule is a significant regulatory action under section
3(f) of Executive Order 12866, Regulatory Planning and Review because
of the level of public interest in distracted driving in general and
texting while driving in particular. The Office of Management and
Budget (OMB) has reviewed the NPRM in accordance with that Order.
Section 6(a)(3) of the Executive Order requires an assessment of
potential costs and benefits. Accordingly, a draft Regulatory
Evaluation has been prepared and is available in the docket referenced
at the beginning of this rulemaking notice. A summary of the Regulatory
Analysis (RA) follows:
FMCSA proposes amendments to the FMCSRs in order to reduce the
prevalence of driver distraction-related crashes involving CMV drivers
through a prohibition against texting by CMV drivers and the imposition
of related disqualification sanctions. The goal of the proposed
revisions is to reduce or prevent truck and bus crashes, fatalities,
and injuries due to texting while driving.
Texting while driving is a recent phenomenon, so quantitative
safety analyses concerning its specific impact on safety are limited.
There are, however, numerous studies on driver distraction in general
that provide a compelling safety argument for taking this action at
this time. FMCSA analyzed those studies and found that many of their
findings provide relevant information in support of a texting
prohibition. With regard to the recent data that provides an assessment
of the safety risks of texting, the regulatory analysis focuses on one
particular study--``the VTTI Study'' \25\--which, though limited in
sample size, sheds light on the potential harm of texting while driving
CMVs through data gathered from a naturalistic driving study in which
there was real-world video monitoring of drivers' activities during the
work day. The odds of being in a safety critical event are 23 times
greater when a CMV driver is texting while driving.
---------------------------------------------------------------------------
\25\ Olson, R. L. et al. (2009). ``Driver distraction.''
---------------------------------------------------------------------------
Because current empirical literature lacks specific findings on the
safety benefits of prohibiting texting while driving a CMV, FMCSA
conducted a threshold analysis of the impact of the proposed rule. A
threshold analysis answers the question, how small does the value of
the non-quantified benefits (safety benefits in terms of crash
prevention) have to be in order for the rule's benefits to equal its
costs. In this case, the proposed rule has minimal costs and presently
yields unquantifiable (though potentially considerable) benefits.
The regulatory evaluation considers the following potential costs:
(a) Value of time lost due to texting while not
[[Page 16401]]
driving during on-duty time; (b) increased crash risk due to trucks
that are parked on the shoulder of the road; (c) increased fuel cost
due to idling and exiting and entering the travel lanes of the roadway;
and (d) increased crash risk due to trucks exiting and entering the
travel lanes of the roadway. The regulatory evaluation also considers
potential costs to States. Because the analysis does not yield
appreciable costs, further analysis pursuant to the Unfunded Mandates
Reform Act of 1995 was deemed unnecessary.
The Agency estimates that, at most, CMV drivers will bear a cost of
approximately $ 2.7 million annually. This cost consists of the value
of driver time lost due to choosing to pull off the roadway to perform
texting activities, increased fuel usage due to choosing to pull over
to the side of the roadway, and the increased risk of a possible rear-
end collision for CMVs being parked off the roadway and pulling into
and out of the roadway. Current guidance from the Office of the
Secretary of Transportation places the value of a statistical life at
$6.0 million. (This guidance is available in the docket for this
rulemaking.) Consequently, the proposed texting prohibition would have
to eliminate only one fatal CMV crash for the benefits of this rule to
exceed the costs.
Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
Lost Driver
Time $2.2
(millions)
-------------------------------------------------------------------- ------
Lost Driver Time (millions)......................... $2.2
Increased Fuel Consumption (millions)............... 0.3
Entering and Exiting Roadway Crashes (millions)..... 0.2
-------------------
Total Costs..................................... 2.7
Benefit of Eliminating One Fatality (millions)...... 6.0
Break-even Number of Lives Saved.................... 1
------------------------------------------------------------------------
FMCSA solicits comment on State compliance costs and other cost
estimates (e.g. those relating to delayed communication) not addressed
in this NPRM or its associated Regulatory Evaluation. Additionally, the
Agency solicits comments and data addressing fatality, injury, and
property damage only crashes caused by texting while driving a CMV.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
FMCSA has conducted an economic analysis of the impact of this
proposed rule on small entities and certifies that a Regulatory
Flexibility Analysis is not necessary because the proposed rule will
not have a significant economic impact on a substantial number of small
entities subject to the requirements of this rule. This rulemaking will
affect all of the approximately 357,000 small entities covered by the
rule; however, the direct costs of this rule to small entities are only
expected to be the costs for lost driver time from foregoing texting
while on-duty and costs for pulling to the side of the road to idle the
truck and send a text message. The majority of motor carriers are small
entities. Therefore, FMCSA will use the total cost of the proposed rule
($2.7 million) applied to the number of small entities (357,000) as a
worse case evaluation which would average less than $8 per carrier.
This is well below DOT's threshold for a substantial economic impact on
a small entity. FMCSA requests comments on this certification.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the FMCSA
personnel listed in the FOR FURTHER INFORMATION CONTACT section of the
proposed rule. FMCSA will not retaliate against small entities that
question or complain about this rule or any policy or action of FMCSA.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247).
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $141.3 million (which is the
value of $100 million in 2008 after adjusting for inflation) or more in
any 1 year. Though this proposed rule would not result in such
expenditure, FMCSA discusses the effects of this rule elsewhere in this
preamble.
Paperwork Reduction Act
This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Privacy Impact Assessment
FMCSA conducted a Privacy Threshold Analysis (PTA) for the proposed
rule on limiting the use of wireless communication devices and
determined that it is not a privacy-sensitive rulemaking because the
rule will not require any collection, maintenance, or dissemination of
Personally Identifiable Information (PII) from or about members of the
public.
Executive Order 13132 (Federalism)
A rule has implications for Federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them.
[[Page 16402]]
FMCSA recognizes that, as a practical matter, this rule may have an
impact on the States. Accordingly, the Agency sought advice from the
National Governors Association (NGA), National Conference of State
Legislators (NCSL), and the American Association of Motor Vehicle
Administrators (AAMVA) on the topic of texting by a letter dated
December 18, 2009. (A copy of these letters is available in the docket
for this rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the
opportunity to meet and discuss issues of concern to the States. State
and local governments will also be able to raise Federalism issues
during the comment period for this NPRM.
Executive Order 12630 (Taking of Private Property)
This proposed rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Executive Order 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FMCSA analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA determined that it is not a ``significant
energy action'' under that order. Though it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards are technical standards (e.g., specifications of materials,
performance, design, or operation; test methods; sampling procedures;
and related management systems practices) that are developed or adopted
by voluntary consensus standards bodies.
The Agency is not aware of any technical standards used to address
texting and therefore did not consider any standards.
National Environmental Policy Act
The Agency analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, published
March 1, 2004 in the Federal Register (69 FR 9680), that this action
requires an Environmental Assessment (EA) to determine if a more
extensive Environmental Impact Statement (EIS) is required. In the
event that FMCSA finds the impacts to the environment do not warrant
the more extensive EIS, FMCSA will issue a Finding of No Significant
Impact (FONSI). The findings of the draft EA reveal that there are no
significant positive or negative impacts on the environment expected to
result from the rulemaking action. There could be minor impacts on
emissions, hazardous materials spills, solid waste, socioeconomics, and
public health and safety. FMCSA requests comments on this draft
environmental assessment.
FMCSA has also analyzed this proposed rule under the Clean Air Act,
as amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this action is exempt from the CAA's general
conformity requirement since it would not result in any potential
increase in emissions that are above the general conformity rule's de
minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover,
based on our analysis, it is reasonably foreseeable that the rule would
not significantly increase total CMV mileage, nor would it change the
routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor
carriers. This action merely establishes requirements to prohibit
texting while driving and establishes a procedure for disqualification.
FMCSA seeks comment on these determinations.
Executive Order 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of this NPRM in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact that could result from its
promulgation. Environmental justice issues would be raised if there
were ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. None of the alternatives analyzed in the
Agency's EA, discussed under NEPA, would result in high and adverse
environmental impacts.
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
49 CFR Part 384
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
49 CFR Part 392
Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
For the reasons discussed in the preamble, FMCSA proposes to amend
49 CFR parts 383, 384, 390, 391, and 392 as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
1. The authority citation for part 383 continues to read as
follows:
Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b)
of Pub. L. 107-56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119
Stat. 1144, 1726; and 49 CFR 1.73.
[[Page 16403]]
2. Amend Sec. 383.5 by adding the definitions for ``Electronic
device,'' and ``Texting'' in alphabetical order to read as follows:
Sec. 383.5 Definitions.
* * * * *
Electronic device includes, but is not limited to, a cellular
telephone; personal digital assistant; pager; computer; or other device
used to input, write, send, receive, or read text.
* * * * *
Texting means manually entering alphanumeric text into, or reading
text from, an electronic device.
(1) This action includes, but is not limited to, short message
service, e-mailing, instant messaging, a command or request to access a
World Wide Web page, or engaging in any other form of electronic text
retrieval or entry, for present or future communication.
(2) Texting does not include:
(i) Reading, selecting, or entering a telephone number, an
extension number, or voicemail retrieval codes and commands into an
electronic device for the purpose of initiating or receiving a phone
call or using voice commands to initiate or receive a telephone call;
(ii) Using an in-cab fleet management system or citizens band
radio;
(iii) Inputting or selecting information on a global positioning
system or navigation system; or
(iv) Using a device capable of performing multiple functions for a
purpose that is not otherwise prohibited in this rule.
* * * * *
3. Amend Sec. 383.51 by adding a new paragraph (c)(9) to Table 2
to read as follows:
Sec. 383.51 Disqualifications of Drivers.
* * * * *
(c) * * *
Table 2 to Sec. 383.51
----------------------------------------------------------------------------------------------------------------
For a third or
For a second subsequent
conviction of any conviction of any
combination of combination of
offenses in this For a third or offenses in this
For a second Table in a subsequent Table in a
conviction of any separate incident conviction of any separate incident
combination of within a 3-year combination of within a 3-year
offenses in this period while offenses in this period while
Table in a operating a non- Table in a operating a non-
separate incident CMV, a CDL holder separate incident CMV, a CDL holder
If the driver operates a motor within a 3-year must be within a 3-year must be
vehicle and is convicted of: * * period while disqualified from period while disqualified from
* operating a CMV, a operating a CMV, operating a CMV, a operating a CMV,
person required to if the conviction person required to if the conviction
have a CDL and a results in the have a CDL and a results in the
CDL holder must be revocation, CDL holder must be revocation,
disqualified from cancellation, or disqualified from cancellation, or
operating a CMV suspension of the operating a CMV suspension of the
for * * * CDL holder's for * * * CDL holder's
license or non-CMV license or non-CMV
driving driving
privileges, for * privileges, for *
* * * *
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(9) Violating a State or local 60 days........... Not applicable.... 120 days.......... Not applicable.
law 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 because of traffic, a traffic control device, or other
momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor
running when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location
where the vehicle can safely remain stationary.
* * * * *
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
4. The authority citation for part 384 continues to read as follow:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103
and 215 of Pub. L. 106-159, 113 Stat. 1753, 1767; and 49 CFR 1.73.
5. Amend Sec. 384.301 by adding a new paragraph (e) to read as
follows:
Sec. 384.301 Substantial compliance--general requirements.
* * * * *
(e) A State must come into substantial compliance with the
requirements of subpart B of this part in effect as of [EFFECTIVE DATE
OF FINAL RULE] as soon as practical, but not later than [DATE 3 YEARS
AFTER THE EFFECTIVE DATE OF FINAL RULE].
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
6. The authority citation for part 390 continues to read as
follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31144,
31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941
(49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673,
1677; sec. 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1767, 1773;
and 49 CFR 1.73.
7. Amend Sec. 390.3 by revising paragraph (f)(1) to read as
follows:
Sec. 390.3 General applicability.
* * * * *
(f) * * *
(1) All school bus operations as defined in Sec. 390.5 (except for
the provisions of Sec. Sec. 391.15(e) and 392.80);
* * * * *
8. Amend Sec. 390.5 by adding the definitions for ``Electronic
device,'' and ``Texting'' in alphabetical order to read as follows:
Sec. 390.5 Definitions.
* * * * *
Electronic device includes, but is not limited to, a cellular
telephone; personal digital assistant; pager; computer; or other device
used to input, write, send, receive, or read text.
* * * * *
Texting means manually entering alphanumeric text into, or reading
text from, an electronic device.
(1) This action includes, but is not limited to, short message
service, e-mailing, instant messaging, a command or request to access a
World Wide Web page, or engaging in any other form of electronic text
retrieval or electronic text entry for present or future communication.
(2) Texting does not include:
(i) Reading, selecting, or entering a telephone number, an
extension number, or voicemail retrieval codes and commands into an
electronic device for the purpose of initiating or receiving a phone
call or using voice commands to initiate or receive a telephone call;
(ii) Using an in-cab fleet management system or citizens band
radio;
(iii) Inputting or selecting information on a global positioning
system or navigation system; or
(iv) Using a device capable of performing multiple functions for a
purpose that is not otherwise prohibited in this rule.
* * * * *
[[Page 16404]]
PART 391--QUALIFICATION OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTIONS
9. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502;
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113
Stat. 1767; and 49 CFR 1.73.
10. Revise Sec. 391.2 to read as follows:
Sec. 391.2 General exceptions.
(a) Farm custom operation. The rules in this part (except for Sec.
391.15(e)) do not apply to a driver who drives a commercial motor
vehicle controlled and operated by a person engaged in custom-
harvesting operations, if the commercial motor vehicle is used to--
(1) Transport farm machinery, supplies, or both, to or from a farm
for custom-harvesting operations on a farm; or
(2) Transport custom-harvested crops to storage or market.
(b) Apiarian industries. The rules in this part (except for Sec.
391.15(e)) do not apply to a driver who is operating a commercial motor
vehicle controlled and operated by a beekeeper engaged in the seasonal
transportation of bees.
(c) Certain farm vehicle drivers. The rules in this part (except
for Sec. 391.15(e)) do not apply to a farm vehicle driver except a
farm vehicle driver who drives an articulated (combination) commercial
motor vehicle, as defined in Sec. 390.5. (For limited exemptions for
farm vehicle drivers of articulated commercial motor vehicles, see
Sec. 391.67.)
11. Amend Sec. 391.15 by adding a new paragraph (e) to read as
follows:
Sec. 391.15 Disqualification of drivers.
* * * * *
(e) Disqualification for violation of prohibition of texting while
driving a commercial motor vehicle--
(1) General rule. A driver who is convicted of violating the
prohibition of texting in Sec. 392.80(a) of this chapter is
disqualified for the period of time specified in paragraph (e)(2) of
this section.
(2) Duration. Disqualification for violation of prohibition of
texting while driving a commercial motor vehicle--
(i) Second violation. A driver is disqualified for not less than 60
days if the driver is convicted of two violations of Sec. 392.80(a) of
this chapter in separate incidents during any 3-year period.
(ii) Third or subsequent violation. A driver is disqualified for
not less than 120 days if the driver is convicted of three or more
violations of Sec. 392.80(a) of this chapter in separate incidents
during any 3-year period.
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
12. The authority citation for part 392 continues to read as
follows:
Authority: 49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR
1.73.
13. Amend part 392 by adding a new subpart H to read as follows:
Subpart H--Limiting the Use of Electronic Devices
Sec. 392.80 Prohibition against texting.
(a) Prohibition. No driver shall engage in texting while driving.
(b) Motor Carriers. No motor carrier shall allow or require its
drivers to engage in texting while driving.
(c) Definition. For the purpose of this section only, driving means
operating a commercial motor vehicle, with the motor running, including
while temporarily stationary because of traffic, a traffic control
device, or other momentary delays. Driving does not include operating a
commercial motor vehicle with or without the motor running when the
driver has moved the vehicle to the side of, or off, a highway and has
halted in a location where the vehicle can safely remain stationary.
(d) Exceptions. (1) The provisions of Sec. 390.3(f)(1) of this
chapter (school bus operations) are not applicable to this section.
(2) Texting is permissible by drivers of a commercial motor vehicle
when necessary to communicate with law enforcement officials or other
emergency services.
Issued on: March 29, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-7367 Filed 3-31-10; 4:15 pm]
BILLING CODE 4910-EX-P