[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75470-75488]
[FR Doc No: 2011-30749]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

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

Federal Motor Carrier Safety Administration

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

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

Drivers of CMVs: Restricting the Use of Cellular Phones

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

ACTION: Final rule.

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

DATES: This rule is effective January 3, 2012.

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

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
contact Mr. Brian Routhier, Transportation Specialist, Federal Motor
Carrier Safety Administration, Vehicle and Roadside Operation Division,
at<PHONE_NUMBER> or<EMAIL_ADDRESS>or contact Ben Supko, Sr.
Regulations Officer, Standards and Rulemaking Division, Pipeline and
Hazardous Materials Safety Administration, at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

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

I. Abbreviations

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

II. Background

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

A. Rationale for the Rule

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

The odds of being involved in a safety-critical event are three times
greater when the driver is reaching for an object than when the driver
is not reaching for an object. The odds of being involved in a safety-
critical event are six times greater while the driver is dialing a cell
phone than when the driver is not dialing a cell phone. These increases
in risk are primarily attributable to the driver's eyes being off the
forward roadway. Additionally, these activities have high population
attributable risk (PAR) percentages. PAR percent is the percent of the
drivers involved in a safety critical event that would not occur if
performing the task while driving were eliminated. Tasks that are
performed more frequently have a higher PAR percentage. The highest PAR
percentage in the study was 7.6 percent--reaching for an object,
including cell phones. Dialing a cell phone had a PAR of 2.5. Because
of the data on distractions associated with the use of hand-held mobile
telephones while driving \3\(i.e. reaching for and dialing a mobile
telephone), FMCSA and PHMSA believe it is in the best interest of
public safety to restrict a CMV driver's use of such devices.
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    \1\ Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J.
(2009), Driver distraction in commercial vehicle operations,
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor
Carrier Safety Administration. The study is in the docket at
FMCSA-2010-0096-0016. Hickman, J., Hanowski, R. &
Bocanegra, J. (2010), Distraction in commercial trucks and buses:
assessing prevalence and risk in conjunction with crashes and near-
crashes, (Document No. FMCSA-RRR-10-049) Washington, DC: Federal
Motor Carrier Safety Administration. The study is in the docket at
FMCSA-2010-0096-0004.
    \2\ In popular usage, mobile telephones are often referred to as
``cell phones.'' As explained later in the final rule, a variety of
different technologies are licensed by the Federal Communications
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services;
thus, the rule here would apply to the range of technologies used to
provide wireless telephone communications and the rule uses the
broader term ``mobile telephones.'' However, some of the materials
discussed in this preamble use the popular term ``cell phone,'' and
the discussion continues that usage in such cases as appropriate.
    \3\ As discussed under part II.B, the legal authority supporting
the two regulatory programs of FMCSA and PHMSA differs. FMCSA's
authority to adopt the FMCSRs applies to CMV drivers who operate in
interstate commerce. PHMSA's authority to adopt the HMRs extends to
CMV drivers who operate in intrastate commerce as well.
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    The National Transportation Safety Board (NTSB) determined that one
probable cause of a November 2004 bus crash was the use of a hands-free
cell phone. This crash was the impetus for an NTSB investigation (NTSB/
HAR-06/04 PB2007-916201) and a subsequent recommendation to FMCSA that
the Agency prohibit cell phone use by all passenger-carrying CMVs.\4\
FMCSA also received recommendations on cell phone use from its Motor
Carrier Safety Advisory Committee (MCSAC). One of MCSAC's
recommendations for the National Agenda for Motor Carrier Safety was
that FMCSA initiate a rulemaking to ban a driver's use of hand-held and
hands-free mobile telephones while operating a CMV.
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    \4\ NTSB (2006). Motorcoach collision with the Alexandria Avenue
Bridge overpass, George Washington Memorial Parkway, Alexandria,
Virginia, November 14, 2004 (Highway Accident Report NTSB/HAR-06/04;
NTIS report number PB2007-916201). Retrieved May 16, 2011, from:
http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
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    It is not clear, however, if simply talking on a mobile telephone
presents a significant risk while driving. For example, Olson, et al.
(2009) detailed the risks of reaching for and dialing a phone while
driving and found that ``talking or listening to a hands-free phone''
and ``talking or listening to a hand-held phone'' were relatively low-
risk activities that involved only brief periods of eyes off the
forward roadway. FMCSA and PHMSA determine that it is the action of
taking one's eyes off the forward roadway to reach for and dial a hand-
held mobile telephone \5\ (two high PAR activities) that has the
greatest risk. The Agencies address those risky behaviors by
restricting holding mobile telephones while driving a CMV.
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    \5\ The concept of ``holding'' is included in our definition of
``use a hand-held mobile telephone.''
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    While no State has completely banned mobile telephone use, some
States have gone further than this rule for certain categories of
drivers. For example, 19 States and the District of Columbia prohibit
the use of all mobile telephones while driving a school bus.
Additionally, nine States and the District of Columbia have traffic
laws prohibiting all motor vehicle drivers from using a hand-held
mobile telephone while driving. Transit bus and motorcoach drivers are
the focus of stricter mobile telephone rules in some States and local
jurisdictions.\6\ The restriction of hand-held mobile telephone use by
all CMV drivers is based on available data and in line with existing
regulations that hold CMV drivers to higher standards.\7\
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    \6\ Insurance Institute for Highway Safety list of cellphone
laws. Retrieved June 20, 2011, from http://www.iihs.org/laws/cellphonelaws.aspx.
    \7\ See 49 CFR 392.2, Applicable operating rules, which states
that every commercial motor vehicle must be operated in accordance
with the laws, ordinances, and regulations of the jurisdiction in
which it is being operated. However, if a regulation of the Federal
Motor Carrier Safety Administration imposes a higher standard of
care than that law, ordinance or regulation, the Federal Motor
Carrier Safety Administration regulation must be complied with.
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Distracted Driving Summit
    The information and feedback DOT received during its first
Distracted Driving Summit, held September 30-October 1, 2009, in
Washington, DC, highlighted the need for action and demonstrated
widespread support for a ban against texting and mobile telephone use
while driving. Summit participants, who included industry
representatives, safety experts, elected officials, and law
enforcement, gathered to address the safety risk posed by this growing
problem across all modes of surface transportation. U.S. Transportation
Secretary Ray LaHood stated: ``Keeping Americans safe is without
question the Federal government's highest priority.'' The Secretary
pledged to work with Congress to ensure that the issue of distracted
driving would be appropriately addressed.\8\ At the conclusion of the
Summit, the Secretary announced a series of concrete actions that the
Obama Administration and DOT would be taking to address distracted
driving.
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    \8\ DOT (Oct. 1, 2009). U.S. Transportation Secretary Ray LaHood
Announces Administration-Wide Effort to Combat Distracted Driving
(DOT 156-09). Retrieved May 16, 2011, from: http://www.dot.gov/affairs/2009/dot15609.htm.
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B. Legal Authority

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

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

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

the statutory authority of the 1984 Act. The 1984 Act defines a CMV as
a self-propelled or towed vehicle used on the highways to transport
persons or property in interstate commerce; and that either: (1) Has a
gross vehicle weight/gross vehicle weight rating of 10,001 pounds or
greater; (2) is designed or used to transport more than 8 passengers
(including the driver) for compensation; (3) is designed or used to
transport more than 15 passengers, not for compensation; or (4) is
transporting any quantity of hazardous materials requiring placards to
be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating
CMVs are subject to the FMCSRs, except those who are employed by
Federal, State, or local governments (49 U.S.C. 31132(2)).
    In addition to the statutory exemption for government employees,
there are several regulatory exemptions in the FMCSRs that are
authorized under the 1984 Act, including, among others, one for school
bus operations and one for CMVs designed or used to transport between 9
and 15 passengers (including the driver) not for direct compensation
(49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only
applies to interstate transportation of school children and/or school
personnel between home and school. This particular exemption is not
based on any statutory provisions, but is instead a discretionary rule
promulgated by the Agency. Therefore, FMCSA has authority to modify the
exemption. Modification of the school bus operations exemption requires
the Agency to find that such action ``is necessary for public safety,
considering all laws of the United States and States applicable to
school buses'' (former 49 U.S.C. 31136(e)(1)).\9\ FMCSA also has
authority to modify the non-statutory exemption for small, passenger-
carrying vehicles not for direct compensation, but is not required to
comply with former 49 U.S.C. 31136(e) in modifying that exemption.\10\
FMCSA applies restrictions on hand-held mobile telephone use to both
school bus operations by private operators in interstate commerce and
small passenger-carrying vehicles not for direct compensation, although
they will continue to be exempt from the rest of the FMCSRs. Other than
transportation covered by statutory exemptions, FMCSA has authority to
restrict the use of mobile telephones by drivers operating CMVs.
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    \9\ Former section 31136(e)(1) was amended by section 4007(c) of
the Transportation Equity Act for the 21st Century, Pub. L. 105-178,
112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21 also
provides that the amendments made by section 4007(c) ``shall not
apply to or otherwise affect a waiver, exemption, or pilot program
in effect on the day before the date of enactment of [TEA-21] under
* * * section 31136(e) of title 49, United States Code.'' (Section
4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49 U.S.C.
31136)). The exemption for school bus operations in 49 CFR
390.3(f)(1) became effective on November 15, 1988, and was adopted
pursuant to section 206(f) of the 1984 Act, later codified as
section 31136(e) (Federal Motor Carrier Safety Regulations; General,
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by
FMCSA affecting the school bus operations exemption would require
the Agency to comply with former section 31136(e)(1).
    \10\ The exemption in 49 CFR 390.3(f)(6) was not adopted until
2003, after the enactment of TEA-21, in a final rule titled,
``Safety Requirements for Operators of Small Passenger-Carrying
Commercial Motor Vehicles Used In Interstate Commerce'' (68 FR
47860, Aug. 12, 2003).
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    Any violation of this restriction may result in a civil penalty
imposed on drivers in an amount up to $2,750; a civil penalty may be
imposed on employers, who fail to require their drivers to comply with
FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR
386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of
a CMV driver for violations of the Act and its regulations is also
within the scope of the Agency's authority under the 1984 Act. Such
disqualifications are specified by regulation for other violations (49
CFR 391.15), and were recently adopted by the Agency in its final rule
prohibiting texting by CMV drivers while operating in interstate
commerce (75 FR 59118, Sept. 27, 2010; 49 CFR 392.80). In summary, both
a restriction on the use of hand-held mobile telephones and associated
sanctions, including civil penalties and disqualifications, are
authorized by statute and regulation for operators of CMVs, as defined
above, in interstate commerce, with limited exceptions. But before
prescribing any regulations under the 1984 Act, FMCSA must consider
their costs and benefits (49 U.S.C. 31136(c)(2)(A)). See Part V,
Regulatory Analysis.
    The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct.
27, 1986), which authorized creation of the CDL program, is the primary
basis for licensing programs for certain large CMVs. There are several
key distinctions between the authority conferred under the 1984 Act and
that under the 1986 Act. First, the CMV for which a CDL is required is
defined under the 1986 Act, in part, as a motor vehicle operating ``in
commerce,'' a term separately defined to cover broadly both interstate
commerce and operations that ``affect'' interstate commerce (49 U.S.C.
31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle
used in commerce to transport passengers or property that: (1) Has a
gross vehicle weight/gross vehicle weight rating of 26,001 pounds or
greater; (2) is designed to transport 16 or more passengers including
the driver; or (3) is used to transport certain quantities of
``hazardous materials,'' as defined in 49 CFR 383.5 (49 U.S.C.
31301(4)). In addition, a provision in the FMCSRs implementing the 1986
Act recognizes that all school bus drivers (whether government
employees or not) and other government employees operating vehicles
requiring a CDL (i.e., vehicles above 26,000 pounds, in most States, or
designed to transport 16 or more passengers) are subject to the CDL
standards set forth in 49 CFR 383.3(b).
    There are several statutory and regulatory exceptions from the CDL
requirements, which include the following individuals: military service
members who operate a CMV for military purposes (a mandatory exemption
for the States to follow) (49 CFR 383.3(c)); certain farmers;
firefighters; CMV drivers employed by a unit of local government for
the purpose of snow/ice removal; and persons operating a CMV for
emergency response activities (all of which are permissive exemptions
for the States to implement at their discretion) (49 CFR 383.3(d)).
States may also issue certain restricted CDLs to other categories of
drivers under 49 CFR 383.3(e)-(g). Drivers with restricted CDLs based
on State programs may still be covered by a disqualification under the
1986 Act arising from the use of hand-held mobile telephones while
operating CMVs.
    The 1986 Act does not expressly authorize the Agency to adopt
regulations governing the safety of CMVs operated by drivers required
to obtain a CDL. Most of these drivers (those involved in interstate
trade, traffic, or transportation) are subject to safety regulations
under the 1984 Act, as described above. The 1986 Act, however, does
authorize disqualification of CDL drivers by the Secretary. It contains
specific authority to disqualify CDL drivers for various types of
offenses, whether those offenses occur in interstate or intrastate
commerce. This authority exists even if drivers are operating a CMV
illegally because they did not obtain a CDL.
    In general, the 1986 Act explicitly identifies several ``serious
traffic violations'' as grounds for disqualification (49 U.S.C.
31301(12) and 31310). In addition to the specifically enumerated
``serious traffic violations,'' the 1986 Act provides related authority
that allows FMCSA to

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

III. Discussion of Comments

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

A. FMCSA Comments

Hand-Held Restriction
    Some commenters believed that restricting hand-held mobile
telephone use by drivers operating CMVs in interstate commerce would
impede business and require many more stops for drivers.
    FMCSA Response. Because drivers have other options available that
do not require pulling over and stopping, FMCSA disagrees that this
rule would impede business. Stops can be avoided by using technological
solutions such as a hands-free mobile telephone with a speaker phone
function or a wired or wireless earphone. Most mobile telephones have a
speaker phone function and one-touch dialing and thus would be
compliant with this rule. Additionally, the Agency estimated the
minimum cost of upgrading from a non-compliant mobile telephone to a
compliant one to be as low as $29.99.\11\ Therefore, abiding by the
final rule will not create a burden on, or hardship for, CMV drivers.
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    \11\ Upgrading is defined as the purchase of a mobile telephone
that has voice dialing and speaker phone capabilities. The average
cost of the least costly compliant phone is $29.99 (with a 2-year
contract). See the Regulatory Evaluation accompanying this final
rule for a full explanation of this cost.
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Complete Mobile Telephone Ban
    A few commenters, including First Group America \12\ and the
Advocates for Highway and Auto Safety (Advocates), thought the Agency
should ban both hand-held and hands-free mobile telephone use.
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    \12\ A North American surface transportation provider that
includes school bus and transit services, as well as Greyhound
Lines, Inc.
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    FMCSA Response. The Agency does not believe sufficient data exist
to justify a ban of both hand-held and hands-free use of mobile
telephones by drivers operating CMVs in interstate commerce. Based on
available studies, FMCSA proposed restricting only hand-held mobile
telephone use by CMV drivers. While some driving simulator-based
studies found conversation to be risky, the Olson, et al. (2009) and
Hickman, et al. (2010) studies found that ``talking or listening to a
hands-free phone'' and ``talking or listening to a hand-held phone''
were relatively low-risk activities and had only brief periods when the
drivers' eyes were off the forward roadway. It is not clear from
available studies if simply talking on a mobile telephone while driving
presents a significant risk. The use of a cell phone, however, involves
a variety of sub-tasks, some increasing and some decreasing the odds of
involvement in a safety-critical event. The Hickman, et al. (2010)
study showed that reaching for a cell phone while driving increased
these odds by 3.7 times. Dialing a cell phone while driving increased
the odds by 3.5 times. Reaching for a headset/earpiece while driving
increased the odds by 3.4 times. Talking or listening on a hands-free
cell phone while driving decreased the odds by .7 times (i.e.,
protective effect). Talking/listening on a hand-held cell phone (odds
ratios = .9) had a non-significant odds ratio (i.e., no increase or
decrease in risk).
    Although talking on the cell phone did not show an increased risk,
a driver must take several risk-increasing steps, such as reaching for
and dialing the cell phone, in order to use the electronic device for
conversation. Based on these studies, FMCSA determined that it is the
action of taking one's eyes off the

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

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

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

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

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

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

policies that direct drivers to restrict their use of cellular phones
to emergency and security purposes only.
    FMCSA Response. The Agency agrees with the UMA and the many
companies whose cell-phone policies continue to allow the use of mobile
telephones to contact law enforcement in cases of emergency and for
security purposes. The Agency, however, did not propose to prohibit CMV
drivers from placing emergency calls. In the NPRM, the Agency said in
Sec.  392.82: ``Emergencies. Using a hand-held mobile telephone is
permissible by drivers of a CMV when necessary to communicate with law
enforcement officials or other emergency services'' (75 FR 80033, Dec.
21, 2010). This final rule allows a CMV driver to use either a hand-
held or hands-free mobile telephone to contact law enforcement or other
emergency services for such purposes as reporting an accident or drunk
driver.
Exceptions to the Hand-Held Ban
    Some industries requested that their drivers be given a blanket
exception to the restriction on using hand-held mobile telephones while
operating CMVs in interstate commerce. For example, the National Rural
Electric Cooperative Association, Southern Company, and other utility
companies requested that their business operations be classified as
emergency services. Specialty and heavyweight hauling operations,
utility companies, and associations representing them also requested
exemptions for their respective industries. The Minnesota Department of
Transportation requested an exemption for their non-urban area formula
transportation providers to allow hand-held mobile telephone use when
communicating with other vehicle operators nearby, as well as with
dispatch services.
    FMCSA Response. Previous Agency decisions support the premise that
the CMV operations of utility companies cannot be classified as
emergency services.\14\ They are subject to varying degrees of
regulation by Federal, State, and local authorities and do not
specifically deal with the protection of life and property. Public
utility employees operate large or hazardous- material-laden vehicles
both day and night throughout the year, sometimes under the most
adverse weather conditions. During declarations of emergency, drivers
may be eligible for exemptions from some regulations under 390.23.
---------------------------------------------------------------------------

    \14\ See the Federal Highway Administration's Notice of Final
Disposition entitled, ``Commercial Driver's License Program;
Waivers; Final Disposition,'' at 53 FR 37313, Sept. 26, 1988.
---------------------------------------------------------------------------

    Regarding the concerns of the Minnesota non-urban formula
transportation program (which receives financial assistance under the
Federal Transit Administration's formula grant program for other than
urbanized areas in accordance with 49 U.S.C. 5311), if such service
providers are State-owned, then the Federal hand-held mobile telephone
restriction will not apply to them; but if the providers are contracted
private transportation companies, they will be covered by the
restriction. Regardless of whether operators are government-owned or
private, the operators may use hands-free mobile telephone
communication, including speakerphone or earphone functions, and still
abide by the restriction on use of a hand-held phone while operating
CMVs.
    Accordingly, FMCSA is unable to conclude that granting an exception
or waiver to these groups is necessary at this time.
Outreach
    The Agency received several comments regarding outreach. Commenters
suggested that early driver education is needed because young CMV
drivers are operating their vehicles and are using their phones as if
they were driving a car (e.g., texting, dialing, etc.). Therefore,
commenters recommended that the Agency require CDL schools to educate
students on the dangers of cell phone use while driving CMVs.
    FMCSA Response. The Agency agrees that enforcement and outreach
efforts are essential to increase public awareness. Previous DOT
campaigns, such as those addressing safety belt use and drinking and
driving, have proven to reduce injuries and fatalities. DOT already has
in place distracted driving campaigns to educate all vehicle drivers on
distracted driving. The Agency believes that many of these efforts are
reaching the CMV driver population, both experienced and new drivers.
Platforms for sharing distracted driving information include the Web
site, http://www.Distraction.gov, as well as outreach on radio and
television, which have generally reduced unsafe driver behaviors and
boosted compliance awareness.
    For more information on research, outreach, and education, the
reader may reference NHTSA's Driver Distraction Program. This program
is a plan to communicate NHTSA's priorities to the public with regard
to driver distraction safety challenges, focusing on the long- term
goal of eliminating crashes that are attributable to distraction. The
complete overview can be found at http://www.distraction.gov/files/dot/6835_DriverDistractionPlan_4-14_v6_tag.pdf. The Secretary considers
preventing distracted driving a priority for the Department and has
promoted funding for education, awareness, and outreach on this
initiative.
Non-CMV Drivers
    Many commenters suggested that a mobile telephone prohibition be
applied to all vehicle drivers, including passenger car drivers, law
enforcement, hazardous materials transporters, and government
employees, among them publicly-employed school bus drivers.
    FMCSA Response. The Agency does not have statutory authority to
regulate non-CMV drivers. As noted above, other than transportation
covered by statutory exemptions, FMCSA has authority to restrict the
use of mobile telephones by drivers operating CMVs in interstate
commerce.
Hand Off the Wheel
    The New England Fuel Institute, Werner Enterprises, the Alliance of
Automobile Manufacturers, and others commented on the language used in
the NPRM preamble that stated: ``The Agency is proposing to allow
hands-free mobile telephone use as long as it does not require the
driver to reach for, dial, or hold a mobile telephone, taking the
driver's eyes off the forward roadway and a hand off the wheel.'' The
commenters felt that the Agency's use of the phrase ``a hand off the
wheel'' was too restrictive and that it sounded as if FMCSA was
implying that drivers maintain both hands on the wheel at all times.
    FMCSA Response. The Agency understands that drivers often take a
hand off the steering wheel to operate the many controls located in a
CMV, including the many instrument panel functions, and to shift a
manual transmission. It was not the intent of the Agency to prevent a
driver from doing necessary tasks required to safely operate the
vehicle. FMCSA has not repeated the referenced discussion in the final
rule. This clarification will correct any misperception the previous
discussion may have created.
Full Compliance
    FMCSA received one comment regarding the analytical treatment of
driver compliance in the Agency's Preliminary Regulatory Evaluation.
The commenter argued that the Agency's assumption of 100 percent
compliance overstates the potential benefits of the rule. The commenter
further argued that

monitoring and enforcing the rule would be problematic and imperfect,
which would further make compliance inconsistent.
    FMCSA Response. When FMCSA conducts regulatory evaluations for
rulemakings, the Agency must establish a baseline for its analysis,
which essentially describes the current state of the regulatory
conditions involved. A baseline, according to the Office of Management
and Budget (OMB) guidance, is ``the best assessment of the way the
world would look absent the proposed regulation.'' \15\
    The purpose of a regulatory evaluation is to provide decision
makers with the estimated costs and benefits associated with the rule.
Sometimes the goal of regulation is to correct a deficiency in existing
rules manifested, for example, by excessive enforcement violations. In
developing the regulatory evaluation, the Agency assumes complete
compliance and attempts to show the impact of the provision once it is
implemented. When estimating the costs and benefits of rules, the
analysis must therefore assume complete (100%) compliance in its
hypothetical depiction of various options. This approach creates an
``all things equal'' relationship between the multiple options within a
given rule, as well as between the various rules.
    Generally speaking, a reduction in compliance, theoretical or
actual, reduces not only the associated benefits of a rule, but also
the associated costs. Departures from the assumption of full compliance
(an accounting of all costs and benefits) removes some costs and some
benefits, and therefore, does not result in an overstatement of the
potential benefits (or costs) of the rule.
---------------------------------------------------------------------------

    \15\ OMB Circular A-4, Regulatory Analysis (09/17/2003), p. 11.
---------------------------------------------------------------------------

Costs and Benefits
    FMCSA received one comment concerning its estimation of costs and
benefits in the Agency's Preliminary Regulatory Evaluation. Advocates
argued that the FMCSA's cost/benefit analysis shows that the highest
net benefit would result from adopting a cell phone restriction that
applies to all commercial drivers and to both hand-held and hands-free
use of cell phones. Advocates further stated that implementing the
lower cost requirement in the final rule would be the better choice.
    FMCSA Response. The FMCSA agrees with Advocates' comment that the
Agency's cost/benefit analysis shows that the highest net benefit would
result from adopting a complete cell phone ban for all CMV drivers. The
commenters, however, did not recognize the distinction between a cost/
benefit analysis and a threshold analysis, which are both used in the
Agency's analysis for this rule. OMB recognizes that it will not always
be possible to express in monetary units all of the important benefits
and costs of rules. If the non-quantified benefits and costs are likely
to be important, OMB guidance \16\ requires that a threshold analysis
be carried out in order to evaluate their significance. A threshold or
a break-even analysis answers the question, ``how small could the value
of the non-quantified benefits be (or how large would the value of the
non-quantified costs need to be) before the rule would yield zero net
benefits''?
---------------------------------------------------------------------------

    \16\ Office of Management and Budget Circular A-4, Sept. 17,
2003, p. 2.
---------------------------------------------------------------------------

    The Agency is not required to choose the regulatory option with the
highest net benefit. In the NPRM, FMCSA offered its preference for
Option Four (a restriction on the use of hand-held mobile telephones by
all interstate CMV drivers) because it minimizes (for an entire CMV
population) the costs of restricting mobile telephone use, including
costs associated with inconvenience, disruption of patterns of business
operations, and stifling technological innovations. Furthermore, it is
not clear whether talking on a mobile telephone presents a significant
risk while driving.
    In the final Regulatory Evaluation, the Agency recalculated the
estimated costs in order to incorporate a more recent price of diesel
fuel. The recalculation affected Options Two (a restriction on the use
of all mobile telephones while operating a CMV for all interstate
drivers) and Three (a restriction on the use of all mobile telephones
while operating a passenger carrying CMV for all interstate drivers).
The revised estimated net benefits of Option Two are negative.

B. PHMSA Comments

Security Concerns
    PHMSA received one comment from the Chemical Facility Security News
concerning the reporting of security incidents. The commenter was
concerned that a ban on the use of cell phones may prevent drivers from
reporting potential security threats while en route to their
destination. The commenter noted that over the road truck drivers were
one of the first groups that the Department of Homeland Security (DHS)
targeted in its ``If You See Something, Say Something\TM\'' Campaign.
DHS recognized that truck drivers would be seeing many things in
operation of their commercial vehicles that might be indicators of
potential terrorist activities, including attempts at hijacking
hazardous materials. The commenter recognizes that this rule would not
stop those reports from being made, but would require the delay of
those reports until the vehicle was parked off the roadway.
    PHMSA Response. As noted above in the FMCSA response, this final
rule allows a CMV driver to use either a hand-held or hands-free mobile
telephone to contact law enforcement or other emergency services for
such purposes as reporting potential terrorist activities, including
attempts to hijack hazardous materials.
Complete Mobile Telephone Ban
    A few commenters, including API, NTSB, and Advocates thought that
PHMSA should ban both hand-held and hands-free mobile telephone use.
The ATA strongly opposed banning of hands-free devices.
    PHMSA Response. See FMCSA response above.
CB Radios
    API also suggested that PHMSA ban the use of CB radios for drivers
of CMVs. The commenter suggests adding regulatory language to include
restricting the use of ``CB radios or other headset devices.''
    PHMSA Response. The use of CB radios by CMV drivers is outside the
scope of this rulemaking.
Employer Liability
    ATA stated that employers should not be held responsible for a
driver's use of a hand-held mobile telephone. ATA suggested the Agency
add the word ``knowingly'' to Sec.  392.82 so that it would read as
follows: ``No motor carrier shall knowingly allow or require its
drivers to use a hand-held mobile telephone while driving a CMV.''
    PHMSA Response. See FMCSA response above.
Law Enforcement
    Robert Baldwin is concerned that state police and other law
enforcement officials will not be held to the same standard as CMV
drivers.
    PHMSA Response. The use of mobile communications devices by law
enforcement officials is outside the scope of this rulemaking.

IV. Discussion of the Rule

    This rule amends regulations in 49 CFR parts 177, pertaining to
carriage of hazardous materials by public highway;

parts 383 and 384, concerning the Agency's CDL regulations; part 390,
general applicability of the FMCSRs; part 391, driver qualifications
and disqualifications; and part 392, driving rules. In general, this
rule reduces the risks of distracted driving by restricting hand-held
mobile telephone use by drivers who operate CMVs.
    This rulemaking restricts a CMV driver from holding a mobile
telephone to conduct a voice communication, dialing a mobile telephone
by pressing more than a single button, or reaching for a mobile phone
in an unacceptable and unsafe manner (e.g. reaching for any mobile
telephone on the passenger seat, under the driver's seat, or into the
sleeper berth). Thus, a driver of a CMV who desires to use a mobile
phone while driving will need to use a compliant mobile telephone (such
as hands-free) located in close proximity to the driver that can be
operated in compliance with this rule. Thus, the ease of ``reach'' or
accessibility of the phone is relevant only when a driver chooses to
have access to a mobile telephone while driving. Essentially, the CMV
driver must be ready to conduct a voice communication on a compliant
mobile telephone, before driving the vehicle. The rule includes
definitions related to the hand-held mobile telephone restriction.
    The rule adds a driver disqualification provision for: (1)
Interstate CMV drivers convicted of using a hand-held mobile telephone,
and (2) CDL holders convicted of two or more serious traffic violations
of State or local laws or ordinances on motor vehicle traffic control,
including using a hand-held mobile telephone. The rule also requires
interstate motor carriers to ensure compliance by their drivers with
the restrictions on use of a hand-held mobile telephone while driving a
CMV. Finally, the rule prohibits motor carriers and employers from
requiring or allowing a CMV driver to use a hand-held mobile telephone
while operating in interstate commerce.
    There is a limited exception to the hand-held mobile telephone
restriction. This exception allows CMV drivers to use their hand-held
mobile telephones if necessary to communicate with law enforcement
officials or other emergency services.
    This rulemaking also amends the authority citations for 49 CFR
parts 177, 383, 384, 390, 391, and 392 to correct statutory references
and eliminate references that are either erroneous or unnecessary.

Section 177.804

    PHMSA adds a new paragraph (c) to prohibit the use of hand-held
mobile telephones by any CMV driver transporting a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR
or any quantity of a material listed as a select agent or toxin in 42
CFR Part 73. As such, motor carriers and drivers who engage in the
transportation of covered materials must comply with the distracted
driving requirements in Sec.  392.82 of the FMCSRs. This ensures that
the FMCSA restriction on a driver's use of hand-held mobile telephones
applies to both intrastate and interstate motor carriers operating CMVs
as defined in 49 CFR 390.5.

Section 383.5

    FMCSA adds a new definition for the term ``mobile telephone.'' The
Agency adopts a definition of ``mobile telephone'' based on the FCC
regulations to cover the multitude of devices that allow users to send
or receive voice communication while driving. It identifies the type of
activity that is restricted by this rule.
    The definition of ``mobile telephone'' reflects the wide variety of
radio telephone services, in addition to cell phone services, that are
licensed by FCC and might be available for use in a CMV. ``Mobile
telephone'' could include, for example, a satellite telephone service
or a broadband radio service. Using such wireless communication
services is just as distracting to a CMV driver as using a cell phone.
FCC classifies these services as ``commercial mobile radio services,''
which are incorporated into the definition of mobile telephone. The FCC
definition for mobile telephone does not include two-way or Citizens
Band radio services.
    To be consistent and to address commenters' concerns, FMCSA
modified the existing definition of ``texting'' in 49 CFR 390.5 to
reflect the Agency's restriction on a driver's use of a hand-held
mobile telephone in this rule. FMCSA eliminated the dialing exception,
as it would now be considered texting. Under the provisions implemented
in this rule, the driver can press a single button to initiate or
terminate a call. The Agency also removed the proposed definition of
``using a hand-held mobile telephone'' from Sec.  383.5. Part 383
establishes the disqualification of CDL drivers that is defined by
State or local law or ordinance on motor vehicle traffic control that
restricts or prohibits the use of hand-held mobile telephones. In
contrast, the Federal disqualification standards and definitions are
contained in Sec. Sec.  391.15 and 390.5.

Section 383.51

    In Table 2 to 49 CFR 383.51, FMCSA adds a new serious traffic
violation that would result in a CDL driver being disqualified. This
serious traffic violation is a conviction for violating a State or
local law or ordinance on motor vehicle traffic control restricting or
prohibiting hand-held mobile telephone use while driving a CMV. The
Agency modified the definition of ``driving'' in footnote 2, removing
the phrase ``with the motor running'' and replacing it with ``on the
highway'' (consistent with our definition of ``highway'' in 49 CFR
390.5), to clarify the scope of the restriction. The modified
definition now reflects the use of hybrid vehicles on the highways,
which can be operated without the motor running. Our definition for
``driving'' now reads as follows: ``Driving, for the purpose of this
disqualification, means operating a commercial motor vehicle on a
highway, including while temporarily stationary because of traffic, a
traffic control device, or other momentary delays. Driving does not
include operating a commercial motor vehicle when the driver has moved
the vehicle to the side of, or off, a highway and has halted in a
location where the vehicle can safely remain stationary.'' The Agency's
decision to change the definition of driving is consistent with the
provisions of 49 U.S.C. 31310(e), which indicates the serious traffic
violation must occur while the driver is operating a CMV that requires
a CDL; the operative provisions in the revised table 2 of Sec.
383.51(c) limit the types of violations that could result in a
disqualification accordingly.
    States must disqualify a CDL driver whenever that driver is
convicted of the triggering number of violations while operating in any
State where such conduct is restricted or prohibited by a State or
local law or ordinance on motor vehicle traffic control.

Section 384.301

    Due to intervening amendments (76 FR 39019, July 5, 2011; 76 FR
68332, November 4, 2011), FMCSA redesignates proposed paragraph (f) as
paragraph (h). It requires all States that issue CDLs to implement the
new provisions in part 383 that relate to disqualifying CDL drivers for
violating the new serious traffic violation of using a hand-held mobile
telephone while driving a CMV. States are required to implement these
provisions as soon as practical, but not later than 3 years after this
rule is effective.

Section 390.3

    FMCSA modifies several discretionary regulatory exemptions
concerning the applicability of the existing FMCSRs, including one for
school bus operations and one for CMVs designed or used to transport
between 9 and 15 passengers (including the driver), not for direct
compensation (49 CFR 390.3(f)(1) and (6)). The Agency finds that this
action is necessary for public safety regarding school bus
transportation by interstate motor carriers, a finding required by the
applicable statutory provisions, as explained above in the legal
authority section. In addition, the Agency determined that, in order to
enhance public safety to the greatest extent possible, the rule will
apply to the operation by drivers of small, passenger-carrying vehicles
(designed to transport 9-15 passengers), not for direct compensation,
who are otherwise exempt from most of the FMCSRs under 49 CFR
390.3(f)(6).

Section 390.5

    FMCSA amends 49 CFR 390.5 by adding new definitions for the terms
``mobile telephone'' and ``use a hand-held mobile telephone,'' for
general application. In this rulemaking, FMCSA defines ``use a hand-
held mobile telephone'' to clarify that certain uses of a hand-held
mobile telephone are restricted, including holding, dialing, and
reaching in a proscribed manner for the mobile telephone to conduct
voice communication. (That is, if a compliant mobile telephone is close
to the driver and operable by the driver while restrained by properly
installed and adjusted seat belts, then the driver would not be
considered to be reaching. Reaching for any mobile telephone on the
passenger seat, under the driver's seat, or into the sleeper berth are
not acceptable actions.) As stated above in Sec.  383.5, FMCSA also
modified the definition of ``texting.''
    FMCSA recognizes that mobile telephones often have multi-functional
capability and is not prohibiting the use of mobile telephones for
other uses. Of course, other types of activities using a mobile
telephone might be covered by other rules, such as those addressing
texting while driving a CMV.

Section 391.2

    FMCSA amends 49 CFR 391.2, which provides certain exceptions to the
requirements of part 391 for custom farm operations, apiarian
industries, and specific farm vehicle drivers, to enable the Agency to
make violations of the Federal mobile telephone restriction a
disqualifying offense for such drivers. While the explicit Federal
restriction against hand-held mobile telephone use applies directly to
these drivers, the disqualification provision in Sec.  391.15(g) below
would not apply without this amendment to the current exceptions under
49 CFR 391.2.

Section 391.15

    FMCSA adds a new paragraph (f) to 49 CFR 391.15 entitled,
``Disqualification for violation of restriction on using a hand-held
mobile telephone while driving a commercial motor vehicle.'' This
provision provides for the disqualification from operating a CMV in
interstate commerce of any driver convicted of two or more violations
within a 3-year period of the new hand-held mobile telephone use
restriction while operating a CMV as set forth in Sec.  392.82. For the
driver's first hand-held mobile telephone use conviction, the Agency
could assess a civil penalty against the driver. If a driver is
convicted of committing a second hand-held mobile telephone use
violation within 3 years, he or she would be disqualified for 60 days,
in addition to being subject to the applicable civil penalty. For three
or more hand-held mobile telephone use convictions for violations
committed within 3 years, a driver would be disqualified for 120 days,
in addition to being subject to the applicable civil penalty.
    This change to the disqualifying offenses for interstate drivers
mirrors the Agency's corresponding new provisions governing the
disqualification offenses for CDL drivers in Sec.  383.51(c). The
required number of convictions to cause a disqualification by FMCSA and
the period of disqualification is the same: 60 days for the second
offense within 3 years and 120 days for three or more offenses within 3
years. In addition, the first and each subsequent violation of such a
restriction or prohibition by a driver are subject to civil penalties
imposed on such drivers, in an amount up to $2,750 (49 U.S.C.
521(b)(2)(A), 49 CFR 386.81 and Appendix B, A(4)).

Section 392.80

    FMCSA eliminates the exception pertaining to school bus drivers as
a necessary change in light of Sec.  390.3 (f)(1) and (6).

Section 392.82

    In Sec.  392.82(a), FMCSA adds a new restriction on use of a hand-
held mobile telephone while driving a CMV. This section also states
that motor carriers must not allow or require CMV drivers to use a
hand-held mobile telephone while driving. Any violation by an employer
would subject the employer to civil penalties in an amount up to
$11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and part 386 Appendix B,
paragraph (a)(3)).
    In Sec.  392.82(b), a definition of ``driving a commercial motor
vehicle'' is incorporated into the restriction on use of a hand-held
mobile telephone while driving, in order to confine the use of that
term to the restriction and the related disqualification. We also seek
to avoid limiting the scope of the same term as used in other
provisions of the FMCSRs.
    FMCSA has eliminated the exception pertaining to school bus drivers
as a necessary change in light of Sec.  390.3 (f)(1) and (6).
    FMCSA adds a limited exception to the hand-held mobile telephone
restriction to allow CMV drivers to use their hand-held mobile
telephones if necessary to communicate with law enforcement officials
or other emergency services. Emergency services are not limited to
traditional emergency responders. It may include those who provide
security and protection in the special environments in which CMV
drivers operate. CMV drivers are always encouraged to report incidents
that may threaten national security in a manner consistent with
safety.'' \17\
---------------------------------------------------------------------------

    \17\ The Department of Homeland Security (DHS) encourages
everyone to report suspicious observations under the ``See
Something, Say SomethingTM'' brand to a regional or local
number. The Transportation Security Administration (TSA) has
ambitiously recruited active participation from the commercial motor
carrier community for both its Highway Watch[supreg] and First
ObserverTM programs, encouraging commercial drivers to
``observe, assess, and report'' suspicious activity and to report
such activity to a national call center ((888) 217-5902) in a manner
consistent with safety.
---------------------------------------------------------------------------

V. Regulatory Analyses

    The rule adopted here restricts the use of hand-held mobile
telephones by drivers of CMVs. FMCSA adds new driver disqualification
sanctions for: (1) Interstate drivers of CMVs who fail to comply with
this Federal restriction and (2) CDL holders who have multiple
convictions for violating a State or local law or ordinance on motor
vehicle traffic control that restricts the use of hand-held mobile
telephones. Additionally, motor carriers operating CMVs are prohibited
from requiring or allowing a CMV driver to engage in the use of a hand-
held mobile telephone. This rulemaking improves safety on the Nation's
highways by reducing the prevalence of distracted driving-related
crashes, fatalities, and injuries involving

drivers of CMVs. In addition, the rulemaking reduces the financial and
environmental burden associated with these crashes and promotes the
efficient movement of traffic and commerce on the Nation's highways.
The National Highway Traffic Safety Administration reports that, in
2009, 5,474 people were killed on U.S. roadways in motor vehicle
crashes that were reported to have involved distracted driving.\18\
These fatalities impose a considerable monetary cost to society
estimated to be approximately $32.8 billion.\19\ In the regulatory
evaluation (in the docket for this rule), FMCSA estimates the benefits
and costs of implementing a restriction on the use of hand-held mobile
telephones while driving a CMV.
---------------------------------------------------------------------------

    \18\ National Highway Traffic Safety Administration Traffic
Safety Facts, Research Note, DOT HS 811 379, September 2010.
    \19\ This cost assumes a value of statistical life equal to $6
million.
---------------------------------------------------------------------------

    FMCSA and PHMSA's threshold analysis for this rule shows that
restricting hand-held mobile telephones would lead to an estimated one-
year cost of $12.1 million. Current guidance from DOT's Office of the
Secretary places the value of a statistical life at $6.0 million.
Consequently, this rule will need to eliminate any combination of crash
types equivalent to two fatalities per year in order for the benefits
of this rule to equal the costs. These results are summarized below in
Table 1.

                   Table 1--Threshold Analysis Results
------------------------------------------------------------------------
                                                       Annual break-even
                                    Total estimated        number of
                                    annual costs *        fatalities
                                                         prevented **
------------------------------------------------------------------------
Restriction on Use of Hand-Held   $12.1 Million ***.  Approximately 2.
 Mobile Telephones--All CMV                           Fatalities.
 Drivers.
------------------------------------------------------------------------
* This cost estimate does not include a one-time cost to the States of
  $2.2 million.
** A statistical life is valued at $6 million.
*** This is a worst case annual cost as it would apply only if 100% of
  CMV drivers were theoretically replaced every year.

Because FMCSA and PHMSA are addressing two of the risky activities--
reaching for and dialing on a hand-held mobile telephone--cited in the
Olson, et al. (2009) study, restricting the use (including holding) of
hand-held mobile telephones is expected to prevent more than two
fatalities and the benefits to justify the cost.

Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures

    FMCSA and PHMSA have determined that this rulemaking action is a
significant regulatory action under Executive Order 12866, Regulatory
Planning and Review, as supplemented by Executive Order 13563 (76 FR
3821, Jan. 21, 2011), and that it is significant under DOT regulatory
policies and procedures because of the substantial Congressional and
public interest concerning the crash risks associated with distracted
driving. However, the estimated economic costs do not exceed the $100
million annual threshold.

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

    Carriers are not required to report revenue to the Agency, but are
required to provide the Agency with the number of power units (PUs)
they operate when they register with the Agency and to update this
figure biennially. Because FMCSA does not have direct revenue figures,
PUs serve as a proxy to determine the carrier size that would qualify
as a small business given the SBA's revenue threshold. In order to
produce this estimate, it is necessary to determine the average revenue
generated by a PU.
    With regard to truck PUs, the Agency determined in the 2003 Hours-
of-Service Rulemaking RIA \20\ that a PU produces about $172,000 in
revenue annually (adjusted for inflation).\21\ According to the SBA,
motor carriers with annual revenue of $25.5 million are considered
small businesses.\22\ This equates to 148 PUs (25,500,000/172,000).
Thus, FMCSA considers motor carriers of property with 148 PUs or fewer
to be small businesses for purposes of this analysis. The Agency then
looked at the number and percentage of property carriers with recent
activity that would have 148 PUs or fewer. The results show that at
least 99 percent of all interstate property carriers with recent
activity have 148 PUs or fewer.\23\ This amounts to 481,788 carriers.
Therefore, the overwhelming majority of interstate carriers of property
are considered small entities.
---------------------------------------------------------------------------

    \20\ FMCSA Regulatory Analysis, ``Hours-of-Service of Drivers;
Driver Rest and Sleep for Safe Operations,'' Final Rule (68 FR
22456, Apr. 23, 2003).
    \21\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
    \22\ U.S. Small Business Administration Table of Small Business
Size Standards matched to North American Industry Classification
(NAIC) System codes, effective August 22, 2008. See NAIC subsector
484, Truck Transportation.
    \23\ Motor Carrier Management Information System (MCMIS) as of
June 17, 2010.
---------------------------------------------------------------------------

    With regard to passenger carriers, the Agency conducted a
preliminary analysis to estimate the average number of PUs for a small
entity earning $7 million annually, based on an assumption that a
passenger-carrying PU generates annual revenues of $150,000. This
estimate compares reasonably to the estimated average annual revenue
per PU for the trucking industry ($172,000). The Agency used a lower
estimate because passenger carriers generally do not accumulate as many
vehicle miles traveled (VMT) per PU as carriers of property; \24\ and
it is assumed, therefore, that they would generate less revenue on
average. The analysis concludes that passenger carriers with 47 PUs or
fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) are considered
small entities. The Agency then looked at the number and percentage of
passenger carriers registered with FMCSA that have 47 PUs or fewer. The
results show that at least 96 percent of all interstate

passenger carriers with recent activity have 47 PUs or fewer.\25\ This
amounts to 11,338 carriers. Therefore, the overwhelming majority of
interstate passenger carriers are considered small entities.
---------------------------------------------------------------------------

    \24\ FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and
20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008.
    \25\ MCMIS, as of June 17, 2010.
---------------------------------------------------------------------------

    In order to estimate the economic impact of the rule on small
entities, FMCSA computed a total annual cost per carrier for each
industry segment. First, FMCSA allocated the total cost \26\ of the
rule in the first year among property and passenger carriers according
to their respective shares of total carrier population.\27\ Interstate
property carriers constitute 98 percent of the total of interstate
carriers, whereas interstate passenger carriers constitute 2 percent.
The total annual cost of the rule ($12,095,948) \28\ was thus weighted
by 98 percent for property carriers, leading to a total cost of
$11,854,036, and by 2 percent for passenger carriers, leading to a
total cost of $241,919. Next, FMCSA divided the two weighted costs by
their respective number of small carriers, as described above, arriving
at a cost-per-carrier for each segment: $11,854,029/481,788 = $24.60
for property carriers; and $241,919/11,338 = $21.33 for passenger
carriers, for a weighted average of $24.50 per small entity.
---------------------------------------------------------------------------

    \26\ The total cost in this section does not include costs to
the States.
    \27\ The actual cost burden may not necessarily be proportionate
to the carrier segment's share in the industry. Absent information
on this distribution, FMCSA applied the above assumption.
    \28\ Excluding costs to the States.
---------------------------------------------------------------------------

    While this rule clearly impacts a substantial number of small
entities, the Agency does not consider a weighted average cost of
approximately $24.50 per entity per year to be economically significant
in light of the estimated average annual revenue of
$172,000.29 30
---------------------------------------------------------------------------

    \29\ Regulatory Analysis for: Hours-of-Service of Drivers;
Driver Rest and Sleep for Safe Operations, Final Rule, FMCSA (68 FR
22456; Apr. 23, 2003).
    \30\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
---------------------------------------------------------------------------

PHMSA

    Similarly, PHMSA has conducted an economic analysis of the impact
of this rule on small entities. PHMSA's incorporation of the FMCSA
restriction into the HMR may affect nearly 1,490 small entities;
however, the direct costs of this rule that small entities may incur
are only expected to be minimal. PHMSA relied on the cost estimates for
property carriers identified by FMCSA above since these costs were
higher than PHMSA found in its regulatory flexibility analysis
conducted in support of its April 29, 2011 NPRM. While the final rule
will clearly impact a substantial number of small entities, the Agency
did not consider an average annual cost of $24.50 per entity to be
economically significant.
    Accordingly, FMCSA and PHMSA Administrators certify that a
regulatory flexibility analysis is not necessary.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), FMCSA and PHMSA seek to assist
small entities in their understanding of this rule so they can better
evaluate its effects on them. If the rule affects your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section
of this rule. FMCSA will not retaliate against small entities that
question or complain about this rule or any policy or action of the
Agency.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-(888) REG-FAIR (1-
(888) 734-3247).

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector, of $ 143.1 million (which is
the value of $100 million in 2010 after adjusting for inflation) or
more in any 1 year. Though this rule will not result in such
expenditure, FMCSA and PHMSA discuss the effects of this rule elsewhere
in this preamble.

Paperwork Reduction Act

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Privacy Impact Assessment

    FMCSA and PHMSA conducted a Privacy Threshold Analysis for the rule
on restricting the use of hand-held mobile telephones by drivers of
CMVs and determined that it is not a privacy-sensitive rulemaking
because the rule does not require any collection, maintenance, or
dissemination of Personally Identifiable Information from or about
members of the public.

Executive Order 13132 (Federalism)

    A rule has implications for federalism under Executive Order 13132
entitled, ``Federalism,'' if it has a substantial direct effect on
State or local governments, on the relationship between the national
government and the States, or on the distribution of powers and
responsibilities among the various levels of government. FMCSA and
PHMSA recognize that, as a practical matter, this rule may have some
impact on the States. None of the State interests contacted by FMCSA,
however, or any other commenter expressed concerns to the FMCSA or
PHMSA dockets pertaining to the Federalism implications of this
rulemaking initiative.
    In the most general sense, under long-standing principles, the
FMCSRs establish minimum safety regulations that may be supplemented by
the States, as long as they are consistent with the regulations. The
NPRM described the effect of the proposed rules in accordance with
provisions already set forth in the FMCSRs, which establish the basis
for the scope of any preemption (75 FR 16398, Apr. 1, 2010).
Specifically, 49 CFR 390.9 states that except as otherwise specifically
indicated, subchapter B of this chapter [III of Title 49, CFR] is not
intended to preclude States or subdivisions thereof from establishing
or enforcing State or local laws relating to safety, the compliance
with which would not prevent full compliance with these regulations by
the persons subject thereto.
    This provision allows the States and their subdivisions to enforce
their laws and regulations relating to safety, as long as that would
not preclude persons subject to the FMCSRs from fully complying with
them. This provision satisfies the requirements of 49 U.S.C.
31136(c)(2)(B) by minimizing unnecessary preemption and allowing the
States to establish additional regulations that do not prevent full
compliance with the FMCSRs. (See also 49 U.S.C. 31141(c)).

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630 entitled,
``Governmental

Actions and Interference with Constitutionally Protected Property
Rights.''

Executive Order 12988 (Civil Justice Reform)

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988 entitled, ``Civil Justice Reform,'' to
minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA and PHMSA analyzed this rule under Executive Order 13045
entitled, ``Protection of Children from Environmental Health Risks and
Safety Risks.'' This rule is not an economically significant rule and
will not create an environmental risk to health or risk to safety that
might disproportionately affect children.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA and PHMSA analyzed this rule under Executive Order 13211
entitled, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The agencies determined that it
is not a ``significant energy action'' under that order. Though it is
nonetheless a potentially ``significant regulatory action'' under
Executive Order 12866, it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The Administrator
of the Office of Information and Regulatory Affairs, OMB, has not
designated it as a significant energy action. Therefore, it does not
require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards are technical standards (e.g., specifications of materials,
performance, design, or operation; test methods; sampling procedures;
and related management systems practices) that are developed or adopted
by voluntary consensus standards bodies.
    FMCSA and PHMSA are not aware of any technical standards used to
address mobile telephone use by CMV drivers and, therefore, did not
consider any such standards.

National Environmental Policy Act

    FMCSA analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.),
determined under our environmental procedures Order 5610.1, published
March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily
assessed that this action requires an Environmental Assessment (EA) to
determine if a more extensive Environmental Impact Statement (EIS) is
required. The findings in the Final EA indicate there are no
significant positive or negative impacts to the environment expected
from the various options in the rule though there could be minor
impacts on emissions, hazardous materials spills, solid waste,
socioeconomics, and public health and safety. Thus, FMCSA, as the lead
agency in this initiative, issues a Finding of No Significant Impact
(FONSI) and will not perform an EIS.
    PHMSA discussed NEPA requirements in its April 29, 2011 NPRA (76 FR
23929). Specifically, PHMSA indicated that it did not anticipate any
significant positive or negative impacts on the environment expected to
result from the rulemaking action. In the NPRM, PHMSA requested
comments regarding safety and security measures that would provide
greater benefit to the human environment or on alternative actions the
agency could take that would provide beneficial impacts. PHMSA did not
receive any comments on this matter.
    In addition, the FMCSA prepared an Environmental Assessment for
this rulemaking, and will sign a Finding of No Significant Impact
(FONSI). As is noted in 40 CFR 1506.3, it is appropriate for an agency
to accept an environmental document in part or in whole, as long as the
actions covered by the original NEPA analysis are substantially the
same. PHMSA hereby states that the rulemakings are substantially
similar, and adopts the Final Environmental Assessment (FEA) as
prepared by FMCSA, as well as the conclusions the FEA reaches. The
FMCSA FEA has been used to support a FONSI, which has been prepared and
signed by the appropriate decision maker within PHMSA. No further NEPA
analysis will be performed.
    FMCSA also analyzed this rule under the Clean Air Act, as amended
(CAA), section 176(c), (42 U.S.C. 7401 et seq.) and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it will not result in any potential increase in
emissions that are above the general conformity rule's de minimis
emission threshold levels (40 CFR 93.153(c)(2)). Moreover, based on our
analysis, it is reasonably foreseeable that the rule will not
significantly increase total CMV mileage, nor will it significantly
change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of
motor carriers. The action merely establishes requirements to restrict
a driver's use of a hand-held mobile telephone while operating a CMV.

List of Subjects

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.

49 CFR Part 392

    Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    For the reasons discussed in the preamble, FMCSA and PHMSA amend 49
CFR parts 177, 383, 384, 390, 391, and 392 as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
1. The authority citation for part 177 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

0
2. Amend Sec.  177.804 by adding a new paragraph (c) to read as
follows:

Sec.  177.804  Compliance with Federal Motor Carrier Safety
Regulations.

* * * * *
    (c) Prohibition against the use of hand-held mobile telephones. In
accordance with Sec.  392.82 of this

chapter, a person transporting a quantity of hazardous materials
requiring placarding under Part 172 of this chapter or any quantity of
a material listed as a select agent or toxin in 42 CFR part 73 may not
engage in, allow, or require use of a hand-held mobile telephone while
driving.

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
3. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 4140,
Pub. L. 109-59, 119 Stat. 1144, 1746; and 49 CFR 1.73.

0
4. Amend Sec.  383.5 by adding the definition ``mobile telephone'' in
alphabetical order and revising the definition of ``texting'' to read
as follows:

Sec.  383.5  Definitions.

* * * * *
    Mobile telephone means a mobile communication device that falls
under or uses any commercial mobile radio service, as defined in
regulations of the Federal Communications Commission, 47 CFR 20.3. It
does not include two-way or Citizens Band Radio services.
* * * * *
    Texting means manually entering alphanumeric text into, or reading
text from, an electronic device.
    (1) This action includes, but is not limited to, short message
service, emailing, instant messaging, a command or request to access a
World Wide Web page, pressing more than a single button to initiate or
terminate a voice communication using a mobile telephone, or engaging
in any other form of electronic text retrieval or entry, for present or
future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global
positioning system or navigation system; or
    (ii) Pressing a single button to initiate or terminate a voice
communication using a mobile telephone; or
    (iii) Using a device capable of performing multiple functions
(e.g., fleet management systems, dispatching devices, smart phones,
citizens band radios, music players, etc.) for a purpose that is not
otherwise prohibited in this part.
* * * * *

0
5. Amend Sec.  383.51 by adding a new paragraph (c)(10) to Table 2 and
revising footnote 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        For a third or        combination of
                               For a second        offenses in this         subsequent         offenses in this
                             conviction of any    Table in a separate    conviction of any   Table in a separate
                              combination of     incident within a 3-     combination of     incident within a 3-
                             offenses in this      year period while     offenses in this     year period while
                            Table in a separate  operating a non-CMV,   Table in a separate    operating a non-
                           incident within a 3-   a CLP or CDL holder  incident within a 3-   CMV, a CLP or CDL
 If the driver operates a    year period while   must be disqualified    year period while      holder must be
   motor vehicle and is     operating a CMV, a     from operating a     operating a CMV, a    disqualified from
      convicted of:         person required to        CMV, if the       person required to   operating a CMV, if
                             have a CLP or CDL    conviction results     have a CLP or CDL      the conviction
                             and a CLP or CDL     in the revocation,     and a CLP or CDL       results in the
                              holder must be       cancellation, or       holder must be         revocation,
                             disqualified from     suspension of the     disqualified from     cancellation, or
                            operating a CMV for   CLP or CDL holder's   operating a CMV for   suspension of the
                                   . . .          license or non-CMV           . . .         CLP or CDL holder's
                                                  driving privileges,                         license or non-CMV
                                                       for . . .                             driving privileges,
                                                                                for . . .
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
(10) Violating a State or  60 days.............  Not applicable......  120 days............  Not applicable.
 local law or ordinance
 on motor vehicle traffic
 control restricting or
 prohibiting the use of a
 hand-held mobile
 telephone while driving
 a CMV.\2\

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\2\ Driving, for the purpose of this disqualification, means operating a commercial motor vehicle on a highway,
  including while temporarily stationary because of traffic, a traffic control device, or other momentary
  delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to
  the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.

* * * * *

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
6. The authority citation for part 384 is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103
and 215, Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; and 49 CFR
1.73.

0
7. Amend Sec.  384.301 by adding a new paragraph (h) to read as
follows:

Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (h) A State must come into substantial compliance with the
requirements of subpart B of this part in effect as of January 3, 2012)
as soon as practical, but not later than January 3, 2015.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
8. The authority citation for part 390 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144,
31151, and 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-
1678; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766,
1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and
amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat.

1144, 1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144,
1745; and 49 CFR 1.73.

0
9. Amend Sec.  390.3 by revising paragraphs (f)(1) and (f)(6) 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(f), 392.80, and 392.82 of this
chapter.
* * * * *
    (6) The operation of commercial motor vehicles designed or used to
transport between 9 and 15 passengers (including the driver), not for
direct compensation, provided the vehicle does not otherwise meet the
definition of a commercial motor vehicle, except that motor carriers
and drivers operating such vehicles are required to comply with
Sec. Sec.  390.15, 390.19, 390.21(a) and (b)(2), 391.15(f), 392.80 and
392.82 of this chapter.
* * * * *

0
10. Amend Sec.  390.5 by adding the definitions ``mobile telephone''
and ``use a hand-held mobile telephone'' in alphabetical order and
revising the definition of ``texting'' to read as follows:

Sec.  390.5  Definitions.

* * * * *
    Mobile telephone means a mobile communication device that falls
under or uses any commercial mobile radio service, as defined in
regulations of the Federal Communications Commission, 47 CFR 20.3. It
does not include two-way or Citizens Band Radio services.
* * * * *
    Texting means manually entering alphanumeric text into, or reading
text from, an electronic device.
    (1) This action includes, but is not limited to, short message
service, emailing, instant messaging, a command or request to access a
World Wide Web page, pressing more than a single button to initiate or
terminate a voice communication using a mobile telephone, or engaging
in any other form of electronic text retrieval or entry, for present or
future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global
positioning system or navigation system; or
    (ii) Pressing a single button to initiate or terminate a voice
communication using a mobile telephone; or
    (iii) Using a device capable of performing multiple functions
(e.g., fleet management systems, dispatching devices, smart phones,
citizens band radios, music players, etc.) for a purpose that is not
otherwise prohibited in this part.
* * * * *
    Use a hand-held mobile telephone means:
    (1) Using at least one hand to hold a mobile telephone to conduct a
voice communication;
    (2) Dialing or answering a mobile telephone by pressing more than a
single button, or
    (3) Reaching for a mobile telephone in a manner that requires a
driver to maneuver so that he or she is no longer in a seated driving
position, restrained by a seat belt that is installed in accordance
with 49 CFR 393.93 and adjusted in accordance with the vehicle
manufacturer's instructions.

PART 391--QUALIFICATION OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTIONS

0
11. The authority citation for part 391 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31133, 31136, and 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat, 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; and 49 CFR 1.73.

0
12. 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) and (g), do not apply to a driver who drives a commercial
motor vehicle controlled and operated by a person engaged in custom-
harvesting operations, if the commercial motor vehicle is used to--
    (1) Transport farm machinery, supplies, or both, to or from a farm
for custom-harvesting operations on a farm; or
    (2) Transport custom-harvested crops to storage or market.
    (b) Apiarian industries. The rules in this part, except for Sec.
391.15(e) and (g), do not apply to a driver who is operating a
commercial motor vehicle controlled and operated by a beekeeper engaged
in the seasonal transportation of bees.
    (c) Certain farm vehicle drivers. The rules in this part, except
for Sec.  391.15(e) and (g), do not apply to a farm vehicle driver
except a farm vehicle driver who drives an articulated (combination)
commercial motor vehicle, as defined in Sec.  390.5 of this chapter.
For limited exemptions for farm vehicle drivers of articulated
commercial motor vehicles, see Sec.  391.67.

0
13. Amend Sec.  391.15 by adding a new paragraph (f) to read as
follows:

Sec.  391.15  Disqualification of drivers.

* * * * *
    (f) Disqualification for violation of a restriction on using a
hand-held mobile telephone while driving a commercial motor vehicle--
    (1) General rule. A driver who is convicted of violating the
restriction on using a hand-held mobile telephone in Sec.  392.82(a) of
this chapter is disqualified from driving a commercial motor vehicle
for the period of time specified in paragraph (g)(2) of this section.
    (2) Duration. Disqualification for violation of a restriction on
using a hand-held mobile telephone while driving a commercial motor
vehicle--
    (i) Second violation. A driver is disqualified for 60 days if the