[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Proposed Rules]
[Pages 80014-80033]
[FR Doc No: 2010-31736]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

[Docket No. FMCSA-2010-0096]
RIN 2126-AB29

Drivers of CMVs: Restricting the Use of Cellular Phones

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to restrict the use of hand-held mobile telephones, including
hand-held cell phones, by drivers of commercial motor vehicles (CMVs)
while operating in interstate commerce. The Agency proposes new driver
disqualification sanctions for interstate 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, interstate motor carriers would be
prohibited from requiring or allowing drivers of CMVs to engage in the
use of a hand-held mobile telephone while operating in interstate
commerce. This rulemaking would improve safety on the Nation's highways
by reducing the prevalence of distracted driving-related crashes,
fatalities, and injuries involving drivers of CMVs.

DATES: FMCSA will be accepting both initial comments and reply comments
in response to this Notice of Proposed Rulemaking (NPRM). Send your
initial comments on or before February 22, 2011 and reply comments on
or before March 21, 2011. Initial comments may address any issue raised
in the NPRM and the background documents in the docket (e.g.,
regulatory evaluation, studies, environmental assessment, etc.).
Initial comments will be made available promptly electronically, online
on http://www.regulations.gov, or for public inspection 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. In order to allow sufficient opportunity for interested
parties to prepare and submit any reply comments, late-filed initial
comments will not be considered. Reply comments must address only
matters raised in initial comments and must not be used to present new
arguments, contentions, or factual material that is not responsive to
the initial comments.

ADDRESSES: You may submit comments and reply comments identified by
docket number FMCSA-2010-0096 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The
telephone number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rule, contact Mr. Brian Routhier, Transportation Specialist,
Federal Motor Carrier Safety Administration, Vehicle and Roadside
Operation Division, at<PHONE_NUMBER> or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Abbreviations
III. Background
    A. Rationale for the Scope of the Proposed Rule
    B. Legal Authority
    C. Support for a Restriction on Mobile Telephones
    D. Studies of Mobile Telephone Use While Driving
    E. Existing Mobile Telephone Bans by Federal, State, and Local
Governments
IV. Discussion of Proposed Rule
V. Regulatory Analyses

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by
submitting comments, reply comments, and related materials. All
comments received will be posted without change to http://www.regulations.gov and will include any personal information you
provide.

A. Submitting Comments

    If you submit a comment or a reply comment, please include the
docket number for this rulemaking (FMCSA-2010-0096), indicate the
specific section of this document to which each comment applies, and
provide a reason for each suggestion or recommendation. You may submit
your comments and material online or by fax, mail, or hand delivery,
but please use only one of these means. FMCSA recommends that you
include your name and a mailing address, an e-mail address, or a phone
number in the body of your document so that FMCSA can contact you if
there are questions regarding your submission.
    To submit your comment or reply comments online, go to http://www.regulations.gov and click on the ``submit a comment'' box, which
will then become highlighted in blue. In the ``Document Type'' drop
down menu, select ``Proposed Rules,'' insert ``FMCSA-2010-0096'' in the
``Keyword'' box, and click ``Search.'' When the new screen appears,
click on ``Submit a Comment'' in the ``Actions'' column. If you submit
your comments by mail or hand delivery, submit them in an unbound
format, no larger than 8\1/2\; by 11 inches, suitable for copying and
electronic filing. If you submit comments by mail and would like to
know that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope.
    We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.

B. Viewing Comments and Documents

    To view comments or reply comments, as well as any documents
mentioned in this preamble, go to http://www.regulations.gov and click
on the ``read comments'' box in the upper right hand side of the
screen. Then, in the ``Keyword'' box insert ``FMCSA-2010-0096'' and
click ``Search.'' Next, click the ``Open Docket Folder'' in the
``Actions'' column. Finally, in the ``Title'' column, click on the
document you would like to review. If you do not have access to the
Internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the ground floor of the
Department of Transportation West Building, 1200 New Jersey Avenue,
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday
through Friday, except Federal holidays.

C. Privacy Act

    Anyone is able to search the electronic form of 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 DOT's
Privacy Act Statement for the Federal Docket Management System
published in the Federal Register on January 17, 2008 (73 FR 3316).

II. Abbreviations

AAMVA                              American Association of Motor Vehicle
                                    Administrators
ABA                                American Bus Association
Advocates                          Advocates for Highway and Auto Safety
ATA                                American Trucking Associations, Inc.
APTA                               American Public Transportation
                                    Association
CDL                                Commercial Driver's License
CMV                                Commercial Motor Vehicle
CTA                                Chicago Transit Authority
DOT                                United States Department of
                                    Transportation
EA                                 Environmental Assessment
EIS                                Environmental Impact Statement
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
GCRTA                              Greater Cleveland Regional Transit
                                    Authority
MBTA                               Massachusetts Bay Transportation
                                    Authority
MCSAC                              Motor Carrier Safety Advisory
                                    Committee
MCSAP                              Motor Carrier Safety Assistance
                                    Program
NAICS                              North American Industry
                                    Classification System
NCSL                               National Conference of State
                                    Legislatures
NGA                                National Governors Association
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
PDA                                Personal Digital Assistant
TCA                                Truckload Carriers Association
VTTI                               Virginia Tech Transportation
                                    Institute
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III. Background

A. Rationale for the Scope of the Proposed Rule

    Driver distraction can be defined as the voluntary or involuntary
diversion of attention from the primary driving tasks due to an object,
event, or person. 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 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 and
writing on a pad) because it involves all four types of driver
distraction. For example, reaching for and dialing a mobile telephone
are both visual and manual distractions. 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. This
rulemaking proposes to restrict the use of hand-held mobile telephones
because our research indicates that they are a source of driver
distraction that could pose a safety risk. Specifically it would
prohibit a CMV driver from reaching for, holding, or dialing a mobile
telephone in order to conduct a voice communication while driving.
Essentially, the CMV driver must be ready to conduct a voice
communication in compliance with the proposed rule the moment he begins
driving the vehicle.
    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 involvement in a safety-critical event such as a crash, near crash,
or unintended lane departure.\2\ Both reaching for and dialing a hand-
held mobile telephone are manual distractions (i.e., hands-off wheel)
and require substantial visual distraction (i.e., eyes off forward
roadway) to complete the task; therefore the driver may not be capable
of safely operating the vehicle.
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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, July 2009. Retrieved October 20,
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010).
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC:
Federal Motor Carrier Safety Administration.
    \2\ In popular usage, mobile telephones are often referred to as
``cell phones.'' As explained later in the NPRM, a variety of
different technologies are licensed by the Federal Communications
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services;
thus, the proposed rules 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.
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    According to a VTTI study, 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 (i.e., an activity, which if not undertaken, would
increase safety most).\3\ The PAR percentage for reaching for an object
was the highest in the study at 7.6 percent. Because of the physical,
manual, and visual distractions and the data indicating a safety risk
associated with the use of hand-held mobile telephones, FMCSA believes
it is in the interest of public safety to propose, at a minimum, a
restriction on hand-held mobile telephone use while driving a CMV.
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    \3\ See Section D. Studies of Mobile Telephone Use While Driving
for a full discussion.
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    Other governmental entities have made recommendations on mobile
telephone use that go beyond our proposed rule. 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 the use of hand-held and hands-free mobile telephones
while driving.
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    \4\ National Transportation Safety Board (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 July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
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    However, it is not clear if simply talking on a mobile telephone
presents a significant risk. For example, the same VTTI study that
detailed the risks of reaching and dialing 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 of eyes off forward roadway. It is the action of taking
one's eyes off the forward roadway to reach for and dial the mobile
telephone that is highly risky. Therefore, our proposal does not go as
far as the NTSB and MCSAC recommendations.
    While some States have gone further than this proposed restriction
on hand-held mobile telephones, no State has completely banned mobile
telephone use. Nine States and the District of Columbia have traffic
laws prohibiting all motor vehicle drivers from using a hand-held
mobile telephone while driving. Some States have gone further for
certain categories of drivers. Nineteen States and the District of
Columbia prohibit the use of all mobile telephones while driving a
school bus. Transit bus and motorcoach drivers are the focus of
stricter mobile telephone rules in some States and local
jurisdictions.\5\ This NPRM, which proposes to restrict hand-held
mobile telephone use by all CMV drivers, is in line with existing
regulations that hold CMV drivers to higher standards.
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    \5\ IIHS list of cellphone laws. http://www.iihs.org/laws/cellphonelaws.aspx
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    This rulemaking would improve safety on the Nation's highways by
reducing the prevalence of, or preventing, certain truck- and bus-
related crashes, injuries, and fatalities associated with distracted
driving. Our proposal would restrict hand-held mobile telephone use,
but the Agency requests comment on whether we should implement in full
the NTSB and MCSAC recommendations. The Agency requests public comment
on the feasibility, operational impact, and safety benefits of
prohibiting hands-free mobile telephone technology by drivers of CMVs
as well. Because the Agency does not intend that this rulemaking
preclude the use of innovative technologies that could be safely used
by CMV drivers to facilitate mobile telephone use, the Agency will
consider, through this rulemaking process, all information from
interested parties, as it assesses the risks, feasibility, and safety
of adopting an approach in the final rule. Public comment on these
issues should also recognize our responsibility to ensure that CMV
drivers are held to the highest degree of safety.

B. Legal Authority

    The authority for this proposed rule derives from the Motor Carrier
Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the
Commercial Motor Vehicle Safety Act of 1986 (1986 Act), 49 U.S.C.
chapter 313. The 1984 Act (Pub. L. 98-554, Title II, 98 Stat. 2832,
Oct. 30, 1984) provides authority to regulate the safety of operations
of CMV drivers and motor carriers and vehicle equipment. It requires
the Secretary of Transportation (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 proposed rule is based primarily on 49 U.S.C. 31136(a)(1),
which requires regulations that ensure that CMVs are operated safely,
and secondarily on section 31136(a)(2), to the extent that drivers' use
of mobile telephones might impact their ability to operate CMVs safely.
This NPRM does not address the physical condition of drivers (49 U.S.C.
31136(a)(3)), nor does it impact possible physical effects caused by
driving CMVs (49 U.S.C. 31136(a)(4)).
    The relevant provisions of the Federal Motor Carrier Safety
Regulations (FMCSRs) (49 CFR subtitle B, chapter III, subchapter B)
apply to CMV drivers and employers operating a CMV 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)). The proposed
rule would also require employers to ensure their drivers comply with
the restrictions on use of hand-held mobile telephones while driving
CMVs.
    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)).\6\ Likewise, FMCSA 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).\7\ FMCSA is proposing to apply
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
would 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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    \6\ Former section 31136(e)(1) was amended by section 4007(c) of
the Transportation Equity Act for the 21st Century, Public Law 105-
178, 112 Stat. 107, 403 (June 9, 1998) (TEA-21). However, TEA-21
also provides that the amendments made by section 4007(c) ``shall
not apply to or otherwise affect a waiver, exemption, or pilot
program in effect on the day before the date of enactment of [TEA-
21] under * * * section 31136(e) of title 49, United States Code.''
(Section 4007(d), TEA-21, 112 Stat. 404 (set out as a note under 49
U.S.C. 31136).) The exemption for school bus operations in 49 CFR
390.3(f)(1) became effective on November 15, 1988, and was adopted
pursuant to section 206(f) of the 1984 Act, later codified as
section 31136(e) (Federal Motor Carrier Safety Regulations; General,
53 FR 18042-18043, 18053 (May 19, 1988) and section 1(e), Public Law
103-272, 108 Stat 1003 (July 5, 1994)). Therefore, any action by
FMCSA affecting the school bus operations exemption would require
the Agency to comply with former section 31136(e)(1).
    \7\ 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, August 12, 2003).
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    For any violation, such a restriction may be subject to civil
penalties imposed on drivers, in an amount up to $2,750, and on
employers, 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 (49 CFR 391.15(e); 75 FR 59118, September 27, 2010). 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)).
    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)); 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 such restricted CDLs may still be covered by
a disqualification under the 1986 Act arising from the use of hand-held
mobile telephones while driving 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 proposing that
violations by a CDL driver of 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).

C. Support for a Restriction on Mobile Telephones

    There is an overwhelming amount of public support for reducing
distracted driving, including hand-held mobile telephone use, while
operating a CMV. It is likely that most motorists either have first-
hand experience with or know someone who had a motor vehicle crash or
near-crash event involving a distracted driver. There appears to be a
steady increase in the use of electronic devices. Moreover, as outlined
in the examples below, there is some evidence that CMV crashes and
other incidents have been caused by the use of electronic devices.
    FMCSA is aware of several recent CMV crashes in which the use of a
mobile telephone may have contributed to the crash. In one case,
according to media reports, a truck driver from Arkansas told police
she was talking on her cell phone when she became involved in a crash
that killed two boys on May 9, 2010. In another media report, on March
26, 2010, a tractor trailer crossed the median strip of Interstate 65
in central Kentucky and collided with a van transporting 9 adults, two
children, and an infant. All the adults and the infant in the van and
the truck driver were killed. The NTSB is conducting an investigation
into the crash, including attempting to determine if a mobile telephone
was a factor in the crash.\8\ According to media reports, in February
2010, a Montgomery County, Pennsylvania, school bus driver was
allegedly talking on his cell phone before a deadly crash.\9\
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    \8\ http://www.ntsb.gov/Pressrel/2010/100514.html.
    \9\ Driver To Stand Trial In Fatal School Bus Crash. (April 20,
2010) Philadephia, PA: KYW-TV. Retrieved from the CBS3 Web site,
July 21, 2010, from: http://cbs3.com/local/montgomery.county.school.2.1645628.html.
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    In light of these incidents and the potential for more crashes due
to

distracted driving, FMCSA proposes restrictions on the use of hand-held
mobile telephones. We are requesting comments on whether to propose a
complete prohibition on mobile telephone use by drivers of CMVs. We
have included in this NPRM information on research studies as well as
the positions of safety organizations and industry on the use of mobile
telephones by CMV drivers.
National Transportation Safety Board Recommendation
    On November 14, 2004, a motorcoach crashed into a bridge overpass
on the George Washington Memorial Parkway in Alexandria, Virginia. The
National Transportation Safety Board (NTSB) determined that one
probable cause of the crash was the use of a hands-free cell phone,
resulting in cognitive distraction; therefore, the driver did not
``see'' the low bridge warning signs. This crash was the impetus for an
NTSB investigation (NTSB/HAR-06/04 PB2007-916201) and a subsequent
recommendation to FMCSA regarding cell phone use by passenger-carrying
CMVs.\10\ This rulemaking addresses part of this outstanding
recommendation.
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    \10\ National Transportation Safety Board (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 July 22, 2010, from: http://www.ntsb.gov/Publictn/2006/HAR0604.pdf.
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    In a letter to NTSB, dated March 5, 2007, the Agency agreed to
initiate a study to assess:
     The potential safety benefits of restricting cell phone
use by drivers of passenger-carrying CMVs,
     The applicability of an NTSB recommendation to property-
carrying CMV drivers,
     Whether adequate data existed to warrant a rulemaking, and
     The availability of statistically meaningful data
regarding cell phone distraction. Subsequently, the report ``Driver
Distraction in Commercial Vehicle Operations'' (VTTI Study (2009)) was
published on October 1, 2009. This report is summarized in section D.
    Also in 2004, the NTSB investigated a truck-tractor median
crossover crash in Sherman, Texas, that resulted in a collision and
fire. The NTSB's report cited one probable cause as the driver's
attempted or imminent use of a wireless device as a distraction from
his driving duties.
    The Agency will post in the rulemaking docket any additional
information it obtains about these investigations that might not be
generally available to the public.
FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
    Section 4144 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to
establish a Motor Carrier Safety Advisory Committee (MCSAC). The
committee provides advice and recommendations to the FMCSA
Administrator on motor carrier safety programs and regulations and
operates in accordance with the Federal Advisory Committee Act (5
U.S.C. App. 2).
    In MCSAC's March 27, 2009, report to FMCSA titled ``Developing a
National Agenda for Motor Carrier Safety,'' MCSAC recommended that
FMCSA adopt new Federal rules concerning distracted driving.\11\ MCSAC
reported, ``Documented research shows that there are cognitive
distractions and increases in crashes from cellular phone use and text
messaging.'' Therefore, one of MCSAC's recommendations for the National
Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to
ban the use of hand-held and hands-free mobile telephones while
driving.
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    \11\ Parker, David R., Chair, Motor Carrier Safety Advisory
Committee (March 27, 2009). Letter to Rose A. McMurray, Acting
Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor
Vehicle Safety. Retrieved July 23, 2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-01FinalReportandLettertoAdministrator090428.pdf.
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Motorcoach Safety Action Plan
    In the November 2009 DOT Motorcoach Safety Action Plan, DOT
identified seven priority action items that will have the greatest
impact in reducing motorcoach crashes, injuries, and fatalities. One of
these is a recommendation to initiate rulemaking to propose prohibiting
texting and limiting the use of mobile telephones and other devices by
motorcoach drivers.\12\
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    \12\ U.S. Department of Transportation (November 2009).
Motorcoach Safety Action Plan. (DOT HS 811 177). Retrieved July 23,
2010, from: http://www.fmcsa.dot.gov/documents/safety-security/MotorcoachSafetyActionPlan_finalreport-508.pdf.
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Distracted Driving Summit
    The information and feedback DOT received during its Distracted
Driving Summit, held September 30-October 1, 2009, in Washington, DC,
demonstrated both the need and widespread support for a ban against
texting and mobile telephone use while driving. Attendees included
safety experts; researchers; elected officials, including four U.S.
Senators and several State legislators; safety advocacy groups; senior
law enforcement officials; and representatives of the
telecommunications and transportation industries. Summit participants
shared their expertise, experiences, and ideas for reducing distracted
driving behaviors. They addressed the safety risk posed by this growing
problem across all modes of surface transportation.
    U.S. Transportation Secretary Ray LaHood stated: ``Keeping
Americans safe is without question the Federal government's highest
priority--and that includes safety on the road, as well as on mass
transit and rail.'' In addition, the Secretary pledged to work with
Congress to ensure that the issue of distracted driving is
appropriately addressed.\13\ At the conclusion of the Summit, the
Secretary announced a series of concrete actions that the Obama
Administration and DOT are taking to address distracted driving,
including immediately starting rulemakings that would ban texting and
restrict, to the extent possible, the use of mobile telephones by truck
and interstate bus operators, as well as to initiate rulemaking by the
Federal Railroad Administration (FRA) to codify provisions of the FRA's
Emergency Order No. 26 regarding restricting distracting electronic
devices (see discussion below in Part E).
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    \13\ U.S. Department of Transportation (October 1, 2009). U.S.
Transportation Secretary Ray LaHood Announces Administration-Wide
Effort to Combat Distracted Driving (DOT 156-09). Retrieved July 23,
2010, from: http://www.dot.gov/affairs/2009/dot15609.htm.
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    As a follow-up to the Summit, and based on data from studies on
distracted driving, FMCSA initiated a number of actions to combat
distracted driving by CMV drivers. Specifically, FMCSA issued
Regulatory Guidance (75 FR 4305, January 27, 2010) that addressed
texting by CMV drivers and issued a final rule (75 FR 59118, September
27, 2010) that prohibits texting by CMV drivers. Finally, DOT held a
second Distracted Driving Summit on September 21, 2010,
Safety Advocacy Organizations
    Numerous safety advocacy groups voiced support for a prohibition on
mobile telephone use while driving. In January 2009, the National
Safety Council (NSC) called for a nationwide prohibition on all cell
phone use while driving.\14\ The NSC is focused on

alerting the American public to the fact that different distractions
have different levels of crash risk. Additionally, Advocates for
Highway and Auto Safety (Advocates) applauded DOT's effort to consider
banning texting and restricting cell phone use by operators of CMVs.
Advocates recently filed a petition for rulemaking requesting
consideration of such action on the use of a wide array of electronic
devices used by commercial drivers.\15\
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    \14\ National Safety Council, (n.d.). Distracted Driving.
Retrieved July 21, 2010, from: http://www.nsc.org/safety_road/Distracted_Driving/Pages/distracted_driving.aspx.
    \15\ Gillan, J.S. (October 1, 2009). Safety Advocates Respond to
U.S. DOT Secretary's Announcement on Measures to Reduce Distracted
Driving by Commercial Operators. Retrieved July 21, 2010, from the
Advocates for Highway and Auto Safety Web site: http://www.saferoads.org/files/file/Distracted%20Driving%20Statement%20by%20Judith%20Stone%20October%201,%202009.pdf.
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Transportation Industry Associations
Trucking Industry
    The American Trucking Associations, Inc. (ATA) adopted a policy
supporting the safe use of technologies and encourages drivers and/or
motor carriers to consider a range of policies and safeguards intended
to reduce, minimize, and/or eliminate driver distractions that may be
caused by the increased use of electronic technologies. ATA's policy
recommends that manufacturers and others adopt awareness, training, and
safety policies on the use of such technologies--unless they are
already regulated--while operating a motor vehicle. ATA believes that
the use of hand-held electronic devices and the act of texting with
such devices while a motor vehicle is in motion should be
prohibited.\16\ Another one of the initiatives on ATA's safety agenda
is their policy on the use of non-integrated technologies while the
vehicle is in motion.\17\
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    \16\ American Trucking Associations (October 29, 2009).
Addressing the Problem of Distracted Driving. Written testimony to
the Subcommittee on Highways and Transit, U.S. House of
Representatives' Transportation and Infrastructure Committee.
Retrieved July 21, 2010, from: http://www.truckline.com/Newsroom/
Testimony1/Randy%20Mullett%20_
%20Distracted%20Driving%20testimony.pdf.
    \17\ Boyce, C. (June 9, 2009) ATA Unveils Progressive New
Highway Safety Agenda. Retrieved July 21, 2010, from: http://www.truckline.com/pages/article.aspx?id=541%2F%7b8E1C7279-ED27-4C03-B189-CEEEE26BBB12%7d
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    In fact, many ATA member fleets have already adopted company
policies designed to reduce distractions while operating CMVs. Many of
these fleets do not allow drivers to operate any electronic devices at
all, including dispatching equipment, while the vehicle is moving. ATA
conducted an opinion survey of its safety committees on the use of
``non-integrated electronic devices.'' From the responses of these
industry leaders, ATA found that 67 percent of respondents had a policy
restricting or limiting the use of portable electronic devices while
driving. United Parcel Service, Inc. has an existing policy of no
distractions while behind the wheel (e.g., two hands on the wheel and
no two-way communication); and FedEx does not allow drivers to use any
electronic device while operating FedEx vehicles.\18\ Additionally,
ExxonMobil and Shell are examples of large companies that prohibit
employees' use of any type of cell phone while driving during work
hours.\19\ Because numerous large commercial trucking operations
already have policies that prohibit the use of portable electronic
devices while driving, a restriction on hand-held mobile telephone use
is not expected to have a significant adverse impact on trucking
fleets.
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    \18\ Halsey, A. (October 2, 2009). Obama to Federal Employees:
Don't Text and Drive. Washingtonpost.com. Retrieved July 21, 2010,
from: http://www.washingtonpost.com/wp-dyn/content/article/2009/10/01/AR2009100103447_pf.html.
    \19\ Insurance Information Institute (December 2009). Cellphones
and Driving. Retrieved July 21, 2010, from: http://www.iii.org/IU/Cellphone-and-driving/.
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    The Owner-Operators Independent Drivers Association (OOIDA) called
upon government entities to aggressively pursue opportunities to
educate the motoring public on safe driving practices and encourages
law enforcement agencies to fully enforce existing laws pertaining to
inattentive or negligent driving.\20\ The Truckload Carriers
Association (TCA) supports the safe use of technologies and encourages
drivers and/or motor carriers to consider a range of policies and
safeguards intended to reduce, minimize, and/or eliminate driver
distractions caused by the increased use of electronic technologies
(e.g., global positioning systems, cellular phones, etc.) during the
operation of all types of motor vehicles.\21\
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    \20\ OOIDA (n.d.). Distracted Driving. Retrieved from the OOIDA
Web site, July 22, 2010, from: http://ooida.com/Issues&Actions/Issues/DistractedDriving/distracted-driving.htm.
    \21\ Truckload Carriers Association (March 8, 2009). Safe Use of
Technology. Retrieved July 21, 2010, from: http://www.truckload.org/Safe-Use-of-Technology.
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Motorcoach Operators
    A spokesman for the United Motorcoach Association, which represents
tour bus operators, stated that motorcoach operators should not
tolerate drivers using mobile telephones unless there is an emergency.
The American Bus Association (ABA) supports safety initiatives, and the
safety culture of ABA and its member operators support such bans. ABA's
pre-trip passenger safety messaging video instructs passengers, not
drivers, to dial 911 in case of emergency. Only in extreme emergencies
should drivers ever use a cell phone while operating motorcoaches.
Furthermore, ABA asserted that hands-free use of cell phones is no
better than hand-held cell phone use, as cognitive distraction is the
safety issue in question.\22\ The ABA also drafted a model policy for
members that states in part: ``Cell phones and regulated electronic
devices (REDs) are not to be used while the vehicle is in motion.
Incoming calls or transmissions received on company-provided or
authorized cell phones or REDs should go into voicemail and may be
checked only when the bus is parked in a safe location.''\23\ Numerous
large motorcoach and bus operations have already adopted policies that
restrict the use of portable electronic devices while driving (many of
them are more restrictive than the ABA model policy).
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    \22\ Pantuso, P. (October 6, 2009). Government Seeks Tougher
Laws on Distracted Driving. Retrieved July 21, 2010, from the
American Bus Association Web site: http://www.buses.org/files/MemberAlertTextingCellPhones100509[1].pdf.
    \23\ ABA Strategic Safety Committee (2010). Recommended Model
Company Policy: Cell Phones and Electronic Devices (REDs). Available
in the docket for this rulemaking.
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School Bus Operations
    School bus operations are the focus of many States and local
governments that have implemented distracted driving policies and laws;
currently, 19 States and the District of Columbia \24\ ban school bus
drivers from using a mobile telephone while driving. Many cities,
towns, and counties prohibit mobile telephone use or texting by school
bus operators. The American School Bus Council, whose membership
includes: National Association for Pupil Transportation, National
Association of State Directors of Pupil Transportation Services,
National School Transportation Association, Blue Bird Corporation, IC
Corporation, and Thomas Built Buses, recommends prohibiting the use of
cell phones or other portable electronic devices--even those equipped
with hands-free features--while driving and banning the use of cell
phones while supervising the loading and unloading of students.\25\
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    \24\ Vermette, E. (2010). Curbing Distracted Driving 2010 Survey
of State Safety Programs. Retrieved July 21, 2010, from: http://www.distraction.gov/files/research/GHSA-2010_distraction.pdf.
    \25\ American School Bus Council (February 14, 2007). American
School Bus Council Exceeds NTSB's Recommendation on Cell Phone Use
by School Bus Drivers. Retrieved July 23, 2010, from: http://www.americanschoolbuscouncil.org/uploads/pdf/Guidelines_Release.pdf.

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American Public Transportation Association (APTA)
    On December 31, 2009, the APTA Bus Safety Working Group published a
Recommended Practice regarding employee-controlled distractions while
operating a vehicle on agency time. The intent of the voluntary
standard is to provide transit agencies with a guideline to develop
policies and standard operating procedures regarding operator
controlled distractions.\26\
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    \26\ APTA Bus Safety Working Group (December 31, 2009). Reducing
Driver-Controlled Distractions While Operating a Vehicle on Agency
Time. Retrieved from the American Public Transportation Association
Web site, July 23, 2010, from: http://www.aptastandards.com/Portals/0/Bus_Published/APTA-BTS-BS-RP-005-09_employee_controlled_distractions.pdf.
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    FMCSA solicits comments about companies' or organizations' policies
on drivers' use of mobile telephones and other portable electronic
devices while driving CMVs on our Nation's highways.

D. Studies of Mobile Telephone Use While Driving

    There are a number of studies from both government and private
sources related to distracted driving. However, there are few studies
of distracted driving that focus on the CMV driver. The following peer-
reviewed studies were considered while developing this NPRM. These
studies use different methodologies to analyze driver distraction.
There are advantages and disadvantages to each methodology as follows:
     Simulator studies, and to some extent test-track studies,
allow for experimental control over and measurement of the cognitive
distractions, such as the type of phone conversation. These studies may
have unrealistic driving and cell phone use conditions because they are
not conducted on public roadways and therefore lack many of the risks
associated with real world driving;
     Naturalistic driving studies use cameras and
instrumentation in participants' vehicles to provide a clear picture of
driver distraction under real-world driving conditions. However, these
studies may have a small sample size of some of the individual
distractions.

Overall, it is important to keep these differences in mind while
comparing the results from different research methods. Regardless,
these studies illustrate degradations in driver performance due to the
effects of driver distraction.
Driver Distraction in Commercial Vehicle Operations \27\
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    \27\ 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: FMCSA, July 2009.
Retrieved July 26, 2010, from: http://www.fmcsa.dot.gov/facts-research/research-technology/report/FMCSA-RRR-09-042.pdf.
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    Under contract with FMCSA, the Virginia Tech Transportation
Institute (VTTI) completed the study titled, ``Driver Distraction in
Commercial Vehicle Operations,'' and released the final report on
October 1, 2009. The purpose of the VTTI Study (2009) was to
investigate the prevalence of driver distraction in CMV safety-critical
events recorded in a naturalistic data set that included over 200 truck
drivers and data from 3 million miles of operations. Of the 4,452
safety-critical events noted in the combined data, 60 percent had some
type of non-driving related task listed as a potential contributing
factor. Safety-critical events are crashes, near-crashes, crash-
relevant conflicts, and unintentional lane deviations.

[GRAPHIC] [TIFF OMITTED] TP21DE10.067

    The VTTI Study (2009) separately examined the different sub-tasks
associated with cell phone use. Although talking on the cell phone did
not show an increased risk, as seen in Table 1, a driver must take
several risk-increasing steps in order to use the electronic device for
conversation. In particular, as also shown in Table 1, the use of a
cell phone involves a variety of sub-tasks, including reaching for and
holding the phone, performing the visually complex process of manually
dialing the phone, and then carrying out the conversation. In FMCSA's
view, the risk associated with cell phone use should be viewed as a
series of related sub-tasks, not all having equal risk. The odds of
being involved in a safety-critical event are three times greater while
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. But, according
to the VTTI study, the odds of being involved in a safety critical
event while talking or listening to a hand-held or hands-free phone do
not show an increased risk.
    In addition, the population attributable risk (PAR) incorporates
the frequency of engaging in a non-driving related task by the
population of drivers. If a task is done more frequently by a large
population of drivers, it will have a greater PAR percentage. High PAR
percentages occurred for commonly performed tasks (i.e., a task, which
if removed, would increase safety most). The PAR percentage for
reaching for an object was the highest in the study at 7.6 percent. In
other words, there would be 7.6 percent fewer safety- critical events,
if reaching for an object while driving never occurred. The risk of
being involved in a safety-critical event was greater for other
distracting activities, but the prevalence of the distractions was
greatest for reaching for an object. In contrast, the PAR for talking
on a hand-held phone was relatively low, at 0.2 percent, and the PAR
was not calculated for talking on a hands-free cell phone.
    FMCSA constructed a diagram that shows the relationship between the
odds ratios of various activities conducted while driving and their
associated eyes-off-roadway times. As seen in Diagram 1 (constructed
from data in the VTTI study), those tasks that drew the driver's eyes
away from the forward road led to a significant increase in risk. For
example, texting, dialing, using other electronic devices, reading a
map or grooming stand out as risky tasks.

[GRAPHIC] [TIFF OMITTED] TP21DE10.068

    During the 3.8 seconds the driver has his eyes off the forward
roadway while dialing his mobile telephone, at 55 miles per hour, the
CMV travels about the length of a football field, 306 feet.
    A complete copy of the final report for the VTTI Study (2009) is
included in the docket referenced in the beginning of this rulemaking
notice.
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction With Crashes and Near-Crashes\28\
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    \28\ Hickman, J., Hanowski, R., & Bocanegra, J. (2010).
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC:
FMCSA.
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    The purpose of this research was to conduct an analysis of
naturalistic data collected by DriveCam[supreg]. The introduction of
naturalistic driving studies that record drivers (through video and
kinematic \29\ vehicle sensors) in actual driving situations created a
scientific method to study driver behavior under the daily pressures of
real-world driving conditions.
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    \29\ Kinematics is a branch of physics that deals with the
motion of a body or system without reference to force and mass.
---------------------------------------------------------------------------

    The research documented the prevalence of distractions while
driving a CMV, including both trucks and buses, using an existing
naturalistic data set. This data set came from 183 truck and bus fleets
comprising a total of 13,306 vehicles captured during a 90-day period.
There were 8,509 buses and 4,797 trucks. The data sets in the current
study did not include continuous data; they only included recorded
events that met or exceeded a kinematic threshold (a minimum g-force
setting that triggers the event recorder). These recorded events
included safety-critical events (e.g., hard braking in response to
another vehicle) and baseline events (i.e., an event that was not
related to a safety-critical event, such as a vehicle that traveled
over train tracks and exceeded the kinematic threshold). A total of
1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant conflicts, and
211,171 baselines were captured in the data set.
    Odds ratios were calculated to show a measure of association
between involvement in a safety-critical event, which includes crashes,
and performing a non-driving related task. The odds ratios show the
odds of being involved in a safety critical event when a non-driving
related task is present compared

to when there is no non-driving related task. The non-driving related
task, ``any cell phone usage,'' includes all the specific cell phone
sub-tasks, such as reaching for, dialing, talking or listening to a
hand-held or hands-free cell phone.
    Drivers increased their odds of involvement in a safety-critical
event by 1.14 times for ``any cell phone usage'' while driving.
However, when the cell phone task was disaggregated into sub-tasks, the
study results show that the sub-tasks involved with using a cell phone
have different risks, some increasing and some decreasing the odds of
involvement in a safety-critical event. The odds of involvement in a
safety critical event increased significantly when truck and bus
drivers performed certain non-driving related tasks:
     Reaching for a cell phone while driving increased the odds
by 3.7 times;
     Dialing a cell phone while driving increased the odds by
3.5 times;
     Reaching for a headset/earpiece increased the odds by 3.4
times.

Drivers decreased the odds of being involved in a safety-critical event
by .65 times while talking or listening on a hands-free cell phone.
However, the odds ratio for talking/listening should not ignore the
fact that a person usually has to reach for and dial a cell phone in
order to talk or listen. Both consuming food/drink and talking/
listening on a hand-held cell phone (odds ratios = 1.11 and 0.89,
respectively) had non-significant odds ratios (i.e., no increase or
decrease in risk).
The Impact of Cognitive Distraction on Driver Visual Behavior and
Vehicle Control
    While conclusive evidence is still lacking, several studies focused
on cognitive distraction and its influence on driver performance.
Harbluk, Noy, and Eizenman (2002) examined the impact of cognitive
distraction on drivers' visual behavior and vehicle control.\30\ This
instrumented-vehicle study examined changes in drivers' visual scanning
driving patterns under three tasks varying in cognitive complexity: no
distraction, an easy cognitive task (i.e., simple addition), and a
difficult cognitive task (i.e., difficult addition). As predicted,
drivers had significantly increased hard-braking events under
distracted driving conditions. Interestingly, under distracted driving
conditions, drivers made fewer eye movements, spent more time focusing
on the central visual field, and spent less time scanning the right
periphery. This suggests that visual scanning collapses to a minimal
level under distracted driving conditions, increasing the risk that a
driver will miss a critical event.
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    \30\ Harbluk, J. L., Noy, Y. I., & Eizenman, M. (2002). The
Impact of Cognitive Distraction on Driver Visual Behavior and
Vehicle Control (Report No. TP 13889E). Ottawa: Transport Canada.
Retrieved July 26, 2010, from: http://people.usd.edu/~schieber/
materials/trans-canada-13889.pdf.
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A Decrease in Brain Activation Associated With Driving When Listening
to Someone Speak
    Just, Keller, and Cynkar (2008) used functional magnetic resonance
imaging (MRI) to investigate the impact of concurrent auditory language
comprehension on the brain activity associated with a simulated driving
task.\31\ Participants steered a vehicle along a curving virtual road,
either undisturbed or while listening to spoken sentences that they
judged as true or false. The study was designed to assess the neural
effect of listening while driving, similar to listening to a cell phone
while driving. The central findings were that the sentence listening
task reliably degraded driving performance. The behavioral measures
indicated reliably more road-maintenance errors and larger deviation
from an ideal path in the driving with listening condition. The
findings show that language comprehension performed concurrently with
driving draws mental resources away from the driving and produces
deterioration in driving performance, even when it is not accompanied
by holding or dialing a phone.
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    \31\ Just, M.A., Keller, T.A., & Cynkar, J. (2008). A Decrease
in Brain Activation Associated With Driving When Listening to
Someone Speak. Brain Research. Retrieved July 26, 2010, from: http://www.distraction.gov/files/research/carnegie-mellon.pdf.
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The Distraction Effects of Phone Use During a Crucial Driving Maneuver
    A study by Hancock, Lesch, and Simmons (2003) \32\ examined the
effect of drivers on a test track responding to an in-vehicle phone at
the same time they were faced with making a crucial stopping decision.
The most crucial finding was the variation in stopping accuracy in the
presence of the phone distraction task, from 95 percent accuracy
without distraction to 80 percent with distraction, a significant 15
percentage point reduction. The study shows there is a detrimental
impact of a coincident in-vehicle phone task on a critical driving
maneuver.
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    \32\ Hancock, P. A., Lesch, M., & Simmons, L. (2003). The
Distraction Effects of Phone Use During a Crucial Driving Maneuver.
Accident Analysis and Prevention, 35(4), 501-514. Retrieved July 26,
2010, from: http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6V5S-45SH77V-1-20&_cdi=5794&_user=3928936&_pii=S0001457502000283&_orig=search&_coverDate=07%2F31%2F2003&_sk=999649995&view=c&wchp=dGLzVtb-zSkWb&md5=b40e15505a9c7b04bd3c6aa3c42a5777&ie=/sdarticle.pdf.
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Passenger and Cell Phone Conversations in Simulated Driving
    Drews, Pasupathi, and Strayer (2008) examined in a simulator study
how conversing with passengers in a vehicle differs from conversing on
a cell phone while driving.\33\ The results show that the number of
driving errors was highest when the driver was conversing on a cell
phone while driving. Passenger conversations made more references to
traffic. In addition, drivers' speech production rate (measured in
syllables per second) and the drivers' and passengers' speech
complexity rate (measured in syllables per word of speech) dropped in
response to an increase in the demand of the traffic. Overall, the
study found that cell phone use negatively impacts lane keeping,
increases the following distance, and leads to impairment of a
navigation task, while passenger conversations have little effect on
all of the three measures.
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    \33\ Drews, F.A., Pasupathi, M., & Strayer, D.L. (2008).
Passenger and Cell Phone Conversations in Simulated Driving. Journal
of Experimental Psychology: Applied, 14(4). Retrieved July 26, 2010,
from: http://www.psych.utah.edu/lab/appliedcognition/publications/passenger.pdf.
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Request for Additional Research or Data
    Overall, these studies illustrate degradations in driver
performance due to the effects of driver distraction. The studies do
not necessarily break down the individual components of mobile
telephone use like the VTTI study does. However, they suggest certain
risks when using a mobile telephone. Commenters are encouraged to
provide other research or data that would enable the Agency to better
assess the risk associated with mobile telephone use by CMV drivers
while operating their vehicles.

E. Existing Mobile Telephone Bans by Federal, State, and Local
Governments

Federal
    On October 7, 2008, FRA published Emergency Order 26 (73 FR 58702).
Pursuant to FRA's authority under 49 U.S.C. 20102 and 20103, the order,
which took effect on October 27, 2008, restricts railroad operating
employees from using distracting electronic and electrical devices
while on duty. Among other things, the order prohibits both the use of
mobile telephones and texting by railroad operating employees. FRA
cited numerous examples of the adverse impact that electronic devices
can have

on safe operations. These examples included fatal crashes that involved
operators who were distracted while texting or talking on a mobile
telephone. In light of these incidents, FRA proposed to amend its
railroad communications regulations by restricting use of mobile
telephones and other distracting electronic devices by railroad
operating employees. FRA published its final rule in the Federal
Register on September 27, 2010 (75 FR 59580).
    On September 27, 2010, FMCSA also published a final rule (75 FR
59118) that prohibits texting on electronic devices, including mobile
telephones, while driving a CMV. This rulemaking action addressed one
of the riskiest distracted driving behaviors. Furthermore, on September
27, 2010, the Pipeline and Hazardous Materials Safety Administration
published a notice of proposed rulemaking (75 FR 59197) that addressed
distracted activities by drivers under its authority.
States
    Nine States and the District of Columbia have traffic laws
prohibiting all motor vehicle drivers from using a hand-held mobile
telephone while driving. School bus drivers are currently prohibited
from any mobile telephone use in 19 States and the District of
Columbia. A list of these States can be found at the following Web
site: http://www.iihs.org/laws/cellphonelaws.aspx. Generally, the
State traffic laws are applicable to all drivers operating motor
vehicles within those jurisdictions, including CMV operators. Some
States are already tracking enforcement. For example, since March of
2008, when New Jersey's wireless hand-held telephone and electronic
communication device ban became effective, more than 224,000
citations--an average of almost 10,000 a month-- were issued to
motorists violating this cell phone law.
    Additionally, as part of its continuing effort to combat distracted
driving, DOT kicked off pilot programs in Hartford, Connecticut, and
Syracuse, New York, to test whether increased law enforcement efforts
can get distracted drivers to put down their mobile telephones and
focus on the road. During 1 week of the pilot program in Hartford,
police cited more than 2,000 drivers for talking on mobile telephones
and 200 more for texting while driving.
Public Transportation Agencies
    The severity of the problem of distracted driving led public
transportation agencies to ban the use of mobile telephones/electronic
devices while an operator is driving a vehicle in passenger service. In
the period from May 2008 to May 2009, after the Massachusetts Bay
Transportation Authority (MBTA) issued its cell phone ban, 12 bus
drivers employed by the MBTA were suspended and one bus driver was
fired for using a cell phone while on duty.
    Most transit agencies allow operators to carry cell phones or other
electronic devices in backpacks, purses, or bags, and to use them
outside the vehicle during breaks and layovers and during emergencies.
However, many large transit agencies prohibit operators from carrying
cell phones or other electronic devices in the cab. Examples of
policies at public transportation agencies include the following:

     MBTA. The MBTA banned cell phone use by drivers while
on the job, with penalties escalating from a 3-day suspension after
one offense, to a 10-day suspension after two, and dismissal for the
third offense. Engineers on commuter-rail trains operated by a
private contractor are also prohibited from having a cell phone or
other device on their person.\34\
---------------------------------------------------------------------------

    \34\ Massachusetts Bay Transportation Authority (June 7, 2009).
Cell Phone Ban Expanded. Retrieved July 26, 2010, from the MBTA Web
site: http://www.mbta.com/about_the_mbta/news_events/?id=17461&month=&year=.
---------------------------------------------------------------------------

     Chicago Transit Authority (CTA). The CTA's zero
tolerance policy prohibits employee use of electronic devices while
operating buses and trains. This policy prohibits the use of cell
phones, smart phones, personal digital assistants (PDAs), MP3/music
players, wireless headsets, or any other appliance or device. Having
possession of an electronic device results in probation and a 3-day
suspension. Use of the device while on duty may lead to
discharge.\35\
---------------------------------------------------------------------------

    \35\ Chicago Transit Authority (August 5, 2009). CTA Adopts Zero
Tolerance Policy on Employee Use of Electronic Devices While On-
Duty. Retrieved July 26, 2010, from the CTA Web site: http://www.transitchicago.com/news/default.aspx?Archive=y&ArticleId=2427.
---------------------------------------------------------------------------

     Greater Cleveland Regional Transit Authority (GCRTA).
All employees are prohibited from having a cell phone on their
person while operating a bus or train at the GCRTA. The prohibition
includes: Cell phones; smart phones; PDAs, electronic music devices;
wireless headsets; or any other electronic communication or
listening devices. While on duty, operators must keep cell phones
and other devices separate from their person. They may be stored on-
board in personal bags or purses. Cell phones may only be used when
the operator is on layover, the vehicle is stopped, the parking
brake is set, and he/she has left the driver's seat. Employees will
be terminated for a first offense.\36\

    \36\ Greater Cleveland Regional Transit Authority (September 18,
2009) RTA Strengthens Cell Phone Policy. Retrieved July 26, 2010,
from the GCRTA Web site: http://www.riderta.com/nu_newsroom_releases.asp?listingid=1345.
---------------------------------------------------------------------------

    While FMCSA is aware that many organizations have policies on
mobile telephone use, FMCSA solicits further comments on mobile
telephone use policy and enforcement and on the applicability of State
laws and local ordinances to school bus drivers and transit employees.

IV. Discussion of Proposed Rule

Federal Restriction of Mobile Telephone Use by Interstate CMV Drivers

    In light of the available studies, and to partially address the
NTSB and MCSAC recommendations, the Agency proposes a restriction on
the use of hand-held mobile telephones by CMV drivers operating in
interstate commerce. This rulemaking would prohibit a CMV driver from
reaching for, holding, and dialing a mobile telephone in order to
conduct a voice communication while driving. Essentially, the CMV
driver must be ready to conduct a voice communication in compliance
with the proposed rule the moment he begins driving the vehicle. The
proposed rule would include definitions related to the restriction. It
also would add a driver disqualification provision for interstate CMV
drivers. A driver disqualification provision would also be included for
CDL holders convicted of two or more violations of State or local
traffic laws or ordinances on motor vehicle traffic control concerning
hand-held mobile telephone use.
    This NPRM would amend regulations in 49 CFR parts 383 and 384
concerning the Agency's CDL regulations, part 390 concerning general
applicability of the FMCSRs, part 391 concerning driver qualifications
and disqualifications, and part 392 concerning driving rules. In
general, the proposed requirements are intended to reduce the risks of
distracted driving by restricting hand-held mobile telephone use by a
driver who is operating a CMV in interstate commerce.
    For CMV drivers operating in interstate commerce, the proposed rule
would: (1) Restrict the use of hand-held mobile telephones; and (2)
provide sanctions for those drivers convicted of using a hand-held
mobile telephone while operating a CMV in interstate commerce,
including civil penalties and/or disqualification from driving a CMV
for a specified period of time. In addition, the proposed rule would
provide sanctions for CDL holders convicted of violating a State or
local law or ordinance on motor vehicle traffic control restricting the
use of a hand-held mobile telephone while operating any CMV--
specifically, a

disqualification for a specified period of time from operating any CMV
requiring a CDL.
    The proposed rule would also require interstate motor carriers to
ensure compliance by their drivers with the restrictions on use of a
hand-held mobile telephone while driving a CMV. Motor carriers would be
prohibited from requiring or allowing drivers of CMVs to use a hand-
held mobile telephone while operating in interstate commerce.
    As indicated above, FMCSA proposes that any CDL holder operating a
CMV (as defined in Sec.  383.5) who is convicted of violating a State
or local traffic law or ordinance on motor vehicle traffic control
restricting or prohibiting hand-held mobile telephone use while driving
a CMV would be disqualified for 60 days after a second conviction and
120 days after a third or subsequent conviction within a 3-year
period.\37\ State or local laws or ordinances restricting or
prohibiting hand-held mobile telephone use would be added to the list
of ``serious'' traffic offenses under Sec.  383.51(c). The
disqualifying serious traffic offense would be applicable to all
persons who are required to possess a CDL, in accordance with the
requirements of 49 CFR part 383, and who are subject to a State or
local law or ordinance restricting or prohibiting hand-held mobile
telephone use while driving. Therefore, the amendment to the CDL rules
would be applicable to CMV drivers employed by Federal, State, or local
government agencies, transit authorities, and school districts.
---------------------------------------------------------------------------

    \37\ Although the statute (in 49 U.S.C. 31310(e)) authorizes
disqualifications of ``at least'' 60 or 120 days, the proposed rule
follows the existing structure in the FMCSRs and provides for
disqualifications of exactly 60 or 120 days.
---------------------------------------------------------------------------

Other Technologies

    It is not FMCSA's intention to limit current or future innovative
technologies that could allow safe and effective, completely hands-
free, voice communication. Because of the lack of information about the
availability of completely hands-free technology for CMV drivers' work
environment, FMCSA is unable to analyze their safety and economic or
environmental impacts. 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. We request comments on this
rationale as well as whether true hands-free mobile telephones exist
for use in the CMV operating environment, whether they are safe to use
while driving a CMV, or whether they should be banned as well. The
Agency is also interested in receiving public comments and acquiring
further knowledge about innovative technologies, either those that
exist today or that are under development, including the practicability
of their application and use in CMVs and their safety and economic or
environmental impact. FMCSA notes that the use of Citizens Band (CB)
radios is not restricted in this proposed rule. CB radios are not
included in this proposed rule because they do not fall under the
definition of ``commercial mobile radio services'' as defined by the
FCC. The NPRM should not be construed as a proposal to restrict the use
of mobile telephones by drivers when they are not driving.
    With significant national awareness now focused on the issue of
distracted driving, the Agency hopes that important safety gains can be
achieved as a result of this increased attention on the use of mobile
telephones by drivers operating CMVs. Although fleet management systems
and electronic dispatching tools are used by many of the Nation's
largest CMV fleets, the Agency believes safety-conscious fleet managers
would neither allow nor require their drivers operating CMVs to use
these devices or hand-held mobile telephones while driving.

Applicability to Federal, State, or Local Government Employees

    FMCSA's proposed explicit restriction on using a hand-held mobile
telephone while driving a CMV would apply to CMV drivers covered under
49 CFR Part 392, but the requirements of Part 392 would not be
applicable to Federal, State, or local government-employed drivers of
CMVs in interstate commerce. Those drivers are statutorily exempt from
nearly all of FMCSA's safety regulations. However, the Agency proposes
to make amendments to its disqualifying offenses for such CDL drivers
if they are convicted, while driving a CMV, of violating a State or
local law or ordinance on motor vehicle traffic control that restricts
or prohibits the use of hand-held mobile telephones while driving. The
Agency's amendments to the CDL regulations would be applicable to
Federal, State, or local government-employed drivers of CMVs who are
required to possess a CDL.
    The proposed rule would also be applicable to transit employees
employed by Federal, State, and local governments who are required to
possess a CDL.

Section-by-Section Analysis

Section 390.3 \38\
---------------------------------------------------------------------------

    \38\ The proposed rules in this NPRM are numbered and placed in
relation to the rules currently in effect and published in the Code
of Federal Regulations (CFR). The Agency has issued an NPRM
addressing texting while driving a CMV, which proposes similar
definitions, and analogous prohibitions and disqualifications (75 FR
16391, April 1, 2010). The numbering and placement of any final
regulations that result from this rulemaking will be adjusted
appropriately to reflect any final rules adopted in other
rulemakings.
---------------------------------------------------------------------------

    The Agency proposes to modify 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 should
apply to the operation by drivers of small-passenger carrying vehicles
(designed to transport 9-15 passengers) who are not receiving direct
compensation, which are otherwise exempt from most of the FMCSRs under
49 CFR 390.3(f)(6).
Section 390.5
    The Agency proposes to amend 49 CFR 390.5 by adding new definitions
for the terms ``mobile telephone'' and ``using a hand-held mobile
telephone,'' for general application. A broad definition of the term
mobile telephone is proposed because of the wide variety of radio
telephone services, in addition to cell phone services, that are
licensed by the Federal Communications Commission (FCC) and might be
available for use in a CMV. ``Mobile telephone'' could include, for
example, a satellite telephone service, a broadband radio service, or a
personal communications system. Using such wireless communication
services is just as distracting to a CMV driver as using a cell phone.
The FCC classifies these services as ``commercial mobile radio
services,'' which are incorporated into the definition of mobile
telephone. It does not include two-way or Citizens Band radio.
    In this rulemaking, FMCSA proposes to define ``using a hand-held
mobile telephone'' to clarify that certain uses of a hand-held mobile
telephone are restricted, including reaching for,

dialing, and holding the mobile telephone to conduct voice
communication. The Agency 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 proposed by FMCSA,
such as those addressing texting while driving a CMV. To be consistent
with these new definitions, FMCSA proposes removing exception (2)(i)
from the existing definition of ``texting'' in this section.
Section 391.2
    FMCSA proposes to amend 49 CFR 391.2, which provides certain
exceptions to the requirements of part 391 for custom farm operations,
apiarian industries, and specific farm vehicle drivers, to enable the
Agency to make violations of the Federal mobile telephone restriction a
disqualifying offense for such drivers. While the proposed explicit
Federal restriction against hand-held mobile telephone use applies
directly to these drivers, the disqualification provision in proposed
Sec.  391.15(f) below would not apply without this amendment to the
current exceptions under 49 CFR 391.2.
Section 391.15
    FMCSA proposes to add 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.'' \39\ This
provision would provide 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 proposed 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 proposed change to the disqualifying offenses for
interstate drivers would mirror the Agency's corresponding proposed 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 would be
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 would be subject to civil penalties imposed on such drivers, in
an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and
Appendix B, A(4)).
---------------------------------------------------------------------------

    \39\ The texting NPRM, cited above, proposed to add a new
paragraph (e) to this section. Therefore, paragraph (e); is reserved
in this NPRM for possible use by this Agency for another rulemaking.
---------------------------------------------------------------------------

Section 392.82
    In this section, the Agency proposes a new restriction on using a
hand-held mobile telephone while driving a CMV. Furthermore, this
proposed section states that motor carriers must not allow or require
CMV drivers to use a hand-held mobile telephone while driving. The
Agency would also include a provision in this proposed section to apply
this new hand-held mobile telephone restriction to ``school bus
operations notwithstanding the general exception in 49 CFR
390.3(f)(1).'' Thus, school bus drivers who are employed by non-
government entities and who transport school children and/or school
personnel between home and school in interstate commerce would be
subject to this proposed section. The Agency determined that this
proposed section is necessary for public safety regarding school bus
transportation by interstate motor carriers. In addition, the proposed
rule would apply to the operation of CMVs designed or used to transport
between 9 and 15 passengers (including the driver), not for direct
compensation, notwithstanding the exception in 49 CFR 390.3(f)(6). The
proposed section would also require employers to ensure compliance by
their drivers with the restrictions on use of a hand-held mobile
telephone while driving a CMV. Any violation by an employer would be
subject 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)).
    A definition of ``driving a commercial motor vehicle'' would be
incorporated into the restriction on using a hand-held mobile telephone
while driving, in the proposed new Sec.  392.82, in order to confine
the use of that term to the restriction and the related
disqualification and to avoid limiting the scope of the same term as
used in other provisions of the FMCSRs.
    The Agency proposes to add 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.

Federal Disqualification Standard for CDL Drivers

    Any CDL driver operating a CMV (as defined in Sec.  383.5) who is
convicted of violating a State or local motor vehicle law or ordinance
that prohibits or restricts the use of a hand-held mobile telephone
while driving a CMV would be disqualified after his or her second
conviction for the hand-held mobile telephone offense or any other
serious traffic violation (as defined by Sec.  383.51(c)). The CDL
disqualifying offense would be applicable to all persons who are
required to possess a CDL, in accordance with the requirements of 49
CFR part 383, and who are subject to a State or local law or ordinance
prohibiting or restricting the use of a hand-held mobile telephone
while driving, when the offense occurs during the operation of a CMV.
Therefore, the amendment to the CDL rules is applicable to drivers
employed by Federal, State, or local government agencies, transit
authorities, and school districts. To assist in the application of the
provisions for disqualification, the regulations include definitions of
the words ``mobile telephone'' and ``using a hand-held mobile
telephone.''
Section 383.5
    The Agency proposes to add new definitions for the terms ``mobile
telephone'' and ``using a hand-held mobile telephone.'' The Agency
proposes a broad definition of mobile telephones based on the FCC
regulations to cover the multitude of devices that allow users to send
or receive voice communication while driving. The definitions of
``mobile telephone'' and ``using a hand-held mobile telephone'' would
identify the type of activity that would be restricted by this proposed
rule. To be consistent with these new definitions, FMCSA proposes
removing exception (2)(i) from the definition of ``texting'' in this
section.
Section 383.51
    In Table 2 of 49 CFR 383.51(c), FMCSA would add a new serious
traffic violation that would result in a CDL driver being disqualified.
This serious traffic violation would be a conviction for violating a
State or local law or ordinance restricting hand-held mobile telephone
use while driving a CMV. For the purpose of this disqualification, the
Agency proposes to use the same description of ``driving'' that is
already

in the table for the texting disqualification (Sec.  383.51(c)(9)).
FMCSA notes that the conviction must involve ``using a hand-held mobile
telephone'' while operating a CMV and excludes convictions for hand-
held mobile telephone use by a CDL driver while operating a vehicle for
which such a CDL is not required. The Agency's decision is consistent
with the provisions of 49 U.S.C. 31310(e), which indicates the serious
traffic violation must occur while the driver is operating a CMV that
requires a CDL; the operative provisions in the revised table would
limit the types of violations that could result in a disqualification
accordingly.
    As proposed, every State that issues CDLs would be required to
impose this disqualification on a driver required to have a CDL issued
by that State whenever that CDL driver was convicted of the necessary
number of violations while operating in States where such conduct is
restricted or prohibited by a State or local traffic law.
Section 384.301
    A new paragraph (f) is proposed to be added to Sec.  384.301. It
would require all States that issue CDLs to implement the new
provisions proposed 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 as soon as practical,
but not later than 3 years after this proposed rule is implemented.

Impact on States

Motor Carrier Safety Assistance Program (MCSAP)
    Under MCSAP, States that receive grant funds would be required, as
a condition of receiving the grants, to adopt regulations on the hand-
held mobile telephone restriction that are compatible with final
Federal regulations issued as a result of this rulemaking (49 U.S.C.
31102(a) and 49 CFR 350.201(a)). If a restriction of hand-held mobile
telephone use (such as proposed in Sec.  392.82) and the related
disqualification (such as proposed in Sec.  391.15(f)) are adopted by
FMCSA, States under MCSAP would need to adopt compatible regulations
applicable to both interstate and intrastate transportation as soon as
practicable, but not later than 3 years thereafter (49 CFR 350.331(d)).
If States do not adopt compatible regulations restricting hand-held
mobile telephone use while driving a CMV and related disqualifications,
they may not receive full MCSAP grant funding.
CDL Program
    States that issue CDLs to CMV drivers would be required to adopt
and implement the proposed CDL disqualification provisions that require
disqualification for two or more convictions of violating a State or
local law or ordinance restricting or prohibiting hand-held mobile
telephone use while driving a CMV. States should be in compliance with
this hand-held mobile telephone disqualification as soon as
practicable, but not later than 3 years after the Agency adopts the
disqualification provisions. If they do not comply with this provision,
they may be subject to the loss of up to 5 percent in the first year of
substantial non-compliance and up to 10 percent in subsequent years of
certain Federal-aid highway amounts apportioned to the State (49 U.S.C.
31311(a) and 31314).
Impact on Other State Laws--Preemption
    At present, only nine States and the District of Columbia restrict
or prohibit hand-held mobile telephone use while driving a motor
vehicle within their jurisdictions. FMCSA believes that there is a need
for a Federal regulation to address the safety risks associated with
hand-held mobile telephone use by CMV drivers nation-wide. The Federal
restriction would provide uniform language applicable to CMV drivers
engaged in interstate commerce, regardless of the presence or absence
of a State law or regulation. State laws and regulations that are
compatible with the Federal requirements we are proposing today, or
that have a safety benefit or do not create an undue burden upon
interstate commerce in conformity with 49 U.S.C. 31141 and 49 CFR
350.333, would remain in effect and could continue to be enforced with
regard to CMV drivers. Future actions by the States to institute new
restrictions or prohibitions on any form of mobile telephone use while
driving CMVs in interstate commerce would be governed by the same
principles. For more information see the Federalism section later in
this document.
    The States receiving MCSAP grants would be required, as a condition
of receiving the grants, to adopt, at a minimum, regulations compatible
with any adopted Federal restriction on use of a hand-held mobile
telephone while driving CMVs in interstate commerce, in accordance with
the requirements of 49 CFR 350.333.
Questions and Request for Comments
    In order to make an informed decision on all of these issues
related to mobile telephone use, the Agency requests review and comment
on some specific questions:
    1. Should the Agency completely restrict all mobile telephone use,
both hand-held and hands-free, by CMV drivers while driving in
interstate commerce?
    2. Should some CMV drivers, for example, drivers of passenger-
carrying vehicles or of vehicles carrying hazardous materials, be more
restricted than other CMV drivers?
    3. Some motor vehicle design guidelines suggest limiting the time
that a visual or a visual-manual task takes the driver's eyes off of
the forward roadway when designing vehicle controls. Should the Agency
define a time limit for CMV drivers' interaction with mobile telephones
(either hand-held, hands-free, or both)?
    4. Should the Agency propose limiting the number of keystrokes or
button pushes that a CMV driver is allowed within a certain time frame
when using a mobile telephone (either hand-held, hands-free, or both)?
Should dialing be defined as a specific number of keystrokes or button
pushes such as at least seven keystrokes or button pushes?
    5. Are there technologies available or soon to be available that
would allow completely hands-free mobile telephone operation by CMV
drivers? Please provide any information on the availability and costs
of such technologies. The Agency also requests comments regarding the
amount of time and steps that are required by the driver to initiate
and then conduct a hands-free mobile telephone conversation with such
devices.
    6. The Agency has proposed a definition for ``use of a hand-held
mobile telephone'' in the regulatory text. The Agency requests comments
on this definition as well as the public's views on whether to include
a description of allowable alternatives to ``use of a hand-held mobile
telephone,'' such as hands-free technologies.
    7. FMCSA seeks comment on its assumptions on States' costs, any
increase in enforcement costs to the States, or any other costs or
increases borne by the States.

V. Regulatory Analyses

    FMCSA proposes to restrict the use of hand-held mobile telephones
by drivers of CMVs while operating in interstate commerce.\40\ The
Agency proposes new

driver disqualification sanctions for interstate drivers of CMVs who
fail to comply with this Federal restriction and new driver
disqualification sanctions for 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 would be
prohibited from requiring or allowing drivers of CMVs to engage in the
use of a hand-held mobile telephone while operating in interstate
commerce. This rulemaking would improve health and 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 proposed rulemaking would reduce the financial and
environmental burden associated with these crashes and promote the
efficient movement of traffic and commerce on the Nation's highways.
---------------------------------------------------------------------------

    \40\ In popular usage, mobile telephones are often referred to
as ``cell phones.'' As explained in the NPRM, however, a variety of
different technologies are licensed by the Federal Communications
Commission (FCC) (47 CFR 20.3) to provide mobile telephone services;
thus, these proposed rules would apply to the range of technologies
used to provide wireless telephone communications. But some of the
materials and research studies discussed in this evaluation use the
popular term ``cell phone,'' and the discussion continues that usage
in such cases.
---------------------------------------------------------------------------

    Distraction-related crashes impose a substantial cost on society.
Two studies estimate that mobile telephone related crashes are
responsible for $43 billion in costs each year in the United
States.\41\ Other studies, including two commissioned by the FMCSA,
show that research findings are inconsistent regarding the risks
associated with talking. But reaching for and dialing the device while
driving is a risky activity.\42\ In the regulatory evaluation (in the
docket for this proposed rule), FMCSA estimates the benefits and costs
of implementing a restriction on the use of hand-held mobile telephones
while driving a CMV.
---------------------------------------------------------------------------

    \41\ Cohen, J.T. and Graham, J.D., A revised economic analysis
of restrictions on the use of cell phones while driving, Risk
Analysis 23(1) 1-14, 2003.
    \42\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra,
J. (2009) Driver distraction in commercial vehicle operations.
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor
Carrier Safety Administration, July 2009. Retrieved October 20,
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx? Hickman, J., Hanowski, R. & Bocanegra, J. (2010).
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC:
Federal Motor Carrier Safety Administration.
---------------------------------------------------------------------------

    The Agency considered four regulatory options: (1) No action, (2) a
restriction on the use of all mobile telephones while operating a CMV
for all interstate CMV drivers, (3) a restriction on the use of all
mobile telephones while operating a passenger-carrying CMV for all
interstate drivers, and (4) a restriction on the use of hand-held
mobile telephones by all interstate CMV drivers, which is the preferred
option in this proposed rule. The first option serves as a baseline for
this analysis. For the second option, the Agency conducted a cost-
benefit analysis and estimates that this option would potentially lead
to an annual net benefit of $4 million (Table 2(b)).
    Because specific data that would allow the Agency to quantify
benefits are unavailable, for the third and fourth options the Agency
conducted threshold analyses. Analysis predicts that the third option
would lead to an estimated annual cost of approximately $6.4 million.
Current guidance from DOT's Office of the Secretary places the value of
a statistical life at $6.0 million (Table 2(c)). Consequently, this
option would have to eliminate any combination of crash types
equivalent in cost to approximately one fatality in order for the
benefits of this proposed rule to equal the costs. The analysis further
predicts that the preferred fourth option would lead to an estimated 1-
year cost of $12.1 million (Table 2(a)). Consequently, this option
would have to eliminate any combination of crash types equivalent to
two fatalities per year in order for the benefits of this proposed rule
to equal the costs. These results are summarized below in Table 2.

 Table 2(a)--Threshold Analysis Results--Option Four (Preferred Option)
------------------------------------------------------------------------
                                                     Annual break-even
                                  Total estimated   number of fatalities
                                  annual costs *        prevented **
------------------------------------------------------------------------
Option Four--Restriction on Use  $12.1 Million     Approximately 2
 of Hand-Held Mobile              ***.              Fatalities.
 Telephones--All CMV Drivers.
------------------------------------------------------------------------

  Table 2(b)--Cost-Benefit Analysis Results--Option Two (Restriction on
             Use of All Mobile Telephones--All CMV Drivers)
------------------------------------------------------------------------
                                   Estimated annual    Estimated annual
    Estimated annual benefit             cost             net benefit
------------------------------------------------------------------------
$84 Million.....................  $80 Million.......  $4 Million.
------------------------------------------------------------------------

          Table 2(c)--Threshold Analysis Results--Option Three
------------------------------------------------------------------------
                                                     Annual break-even
                                  Total estimated   number of fatalities
                                  annual costs *        prevented **
------------------------------------------------------------------------
Option Three--Restriction on     $6.4 Million....  Approximately 1
 Use of All Mobile Telephones--                     Fatality.
 All Passenger-Carrying CMV
 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 is addressing two of the risky activities cited in the
VTTI study, the Agency expects the proposed rule would prevent more
than two fatalities and that the benefits justify the cost.

    The regulatory evaluation also finds the potential costs to the
States and private entities do not require further

analysis pursuant to the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) because they are less than $140.8 million per year. I also
certify, in accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), that the proposed rule will not have a significant economic
impact on a substantial number of small entities because the average
cost to carriers subject to the preferred option would be approximately
$24.50.

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

    The FMCSA has determined that this rulemaking action is a
significant regulatory action under Executive Order 12866, Regulatory
Planning and Review, 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 of the preferred option
of the proposed rule 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.
    Carriers are not required to report revenue to the Agency, but are
required to provide the Agency with the number of power units (PU) 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 \43\ that a PU produces about $172,000 in
revenue annually (adjusted for inflation).\44\ According to the SBA,
motor carriers with annual revenue of $25.5 million are considered
small businesses.\45\ 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 fall under that definition (of having 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.\46\ This
amounts to 481,788 carriers. Therefore, the overwhelming majority of
interstate carriers of property would be considered small entities.
---------------------------------------------------------------------------

    \43\ FMCSA Regulatory Analysis, ``Hours of Service of Drivers;
Driver Rest and Sleep for Safe Operations,'' Final Rule (68 FR
22456, April 23, 2003).
    \44\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
    \45\ 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.
    \46\ 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
VMT per PU as carriers of property; \47\ and it is assumed, therefore,
that they would generate less revenue on average. The analysis
concluded that passenger carriers with 47 PUs or fewer ($7,000,000
divided by $150,000/PU = 46.7 PU) would be considered small entities.
The Agency then looked at the number and percentage of passenger
carriers registered with FMCSA that would fall under that definition
(of having 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.\48\ This amounts to 11,338 carriers. Therefore, the
overwhelming majority of interstate passenger carriers would be
considered small entities.
---------------------------------------------------------------------------

    \47\ FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and
20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008.
    \48\ MCMIS, as of June 17, 2010.
---------------------------------------------------------------------------

    In order to estimate the economic impact of the proposed rule on
small entities, FMCSA computed a total annual cost per carrier for each
industry segment. First, FMCSA allocated the total cost \49\ of the
proposed rule in the first year among property and passenger carriers
according to their respective shares of total carrier population.\50\
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 proposed rule's preferred option
($12,095,948) \51\ 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.
---------------------------------------------------------------------------

    \49\ The total cost in this section does not include costs to
the States.
    \50\ 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.
    \51\ Excluding costs to the States.
---------------------------------------------------------------------------

    While the preferred option of this proposed rule would clearly
impact 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 $172,000.52 53 Accordingly, I certify that
a regulatory flexibility analysis is not necessary.
---------------------------------------------------------------------------

    \52\ Regulatory Analysis for: Hours of Service of Drivers;
Driver Rest and Sleep for Safe Operations, Final Rule--Federal Motor
Carrier Safety Administration. 68 FR 22456--Published April 23,
2003.
    \53\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
---------------------------------------------------------------------------

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking
initiative. If the proposed rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section
of the proposed rule. FMCSA will not retaliate against small entities
that question or complain about

this proposed 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 $140.8 million (which is the
value of $100 million in 2009 after adjusting for inflation) or more in
any 1 year. Though this proposed rule would not result in such
expenditure, FMCSA discusses the effects of this rule elsewhere in this
preamble.

Paperwork Reduction Act

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

Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis for the proposed rule
on restricting the use of hand-held mobile telephones by drivers of
passenger-carrying CMVs and determined that it is not a privacy-
sensitive rulemaking because the rule would 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,
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 recognizes that, as a practical matter, this proposed rule
may have some impact on the States. Accordingly, the Agency sought
advice from the National Governors Association (NGA), National
Conference of State Legislatures (NCSL), and the American Association
of Motor Vehicle Administrators (AAMVA) on the topic of mobile
telephone use, by letters to each organization, dated April 6, 2010.
(Copies of these letters are available in the docket for this
rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the
opportunity to meet and discuss issues of concern to the States. As a
result of these consultation efforts with State and local governments,
they would also be able to raise Federalism issues during the comment
period for this NPRM. For a further discussion, see the previous
section in this NPRM entitled ``Impact on other State Laws--
Preemption.''

Executive Order 12630 (Taking of Private Property)

    This proposed rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

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

    FMCSA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA preliminarily 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, Office of
Management and Budget (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.
    The Agency is not aware of any technical standards used to address
mobile telephone use and therefore did not consider any such standards.

National Environmental Policy Act

    The Agency analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.),
determined under our environmental procedures Order 5610.1, published
March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily
assessed that this proposed action requires an Environmental Assessment
(EA) to determine if a more extensive Environmental Impact Statement
(EIS) is required. In the event that FMCSA finds the environmental
impacts do not warrant an EIS, FMCSA will issue a Finding of No
Significant Impact (FONSI). The findings in the draft EA indicate there
are no significant positive or negative impacts to the environment
expected from the various options in the proposed rule. There could be
minor impacts on emissions, hazardous materials spills, solid waste,
socioeconomics, and public health and safety. FMCSA requests comments
on the draft EA.
    FMCSA also analyzed this proposed rule under the Clean Air Act, as
amended (CAA), section 176(c), (42 U.S.C. 7401 et seq.) and
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this proposed action is exempt from the CAA's
general conformity requirement since it would not result in any
potential increase in emissions that are above the general conformity
rule's de minimis emission threshold levels (40 CFR 93.153(c)(2)).
Moreover, based on our analysis, it is reasonably foreseeable that the
proposed

rule would not significantly increase total CMV mileage, nor would it
significantly change the routing of CMVs, how CMVs operate, or the CMV
fleet-mix of motor carriers. The proposed action merely would establish
requirements to restrict hand-held mobile telephone use while driving
CMVs.
    FMCSA seeks comment on these preliminary determinations.

List of Subjects

49 CFR Part 383

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

49 CFR Part 384

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

49 CFR Part 390

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

49 CFR Part 391

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

49 CFR Part 392

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

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

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

    1. The authority citation for part 383 continues to read as
follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b)
of Pub. L. 107-56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119
Stat. 1144, 1726; and 49 CFR 1.73.

    2. Amend Sec.  383.5 by adding the definitions ''mobile telephone''
and ``using a hand-held 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, e-mailing, instant messaging, a command or request to access a
World Wide Web page, or engaging in any other form of electronic text
retrieval or entry, for present or future communication.
    (2) Texting does not include:
    (i) Inputting, selecting, or reading information on a global
positioning system or navigation system; or
    (ii) 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.
* * * * *
    Using a hand-held mobile telephone means using at least one hand to
hold a mobile telephone to conduct a voice communication or to reach
for or dial a mobile telephone.
* * * * *
    3. Amend Sec.  383.51 by adding a new paragraph (c)(10) to Table 2
to read as follows:

Sec.  383.51  Disqualifications of drivers.

* * * * *
    (c) * * *
---------------------------------------------------------------------------

    \2\ Driving, for the purpose of this disqualification, means
operating a commercial motor vehicle, with the motor running,
including while temporarily stationary because of traffic, a traffic
control device, or other momentary delays. Driving does not include
operating a commercial motor vehicle with or without the motor
running when the driver has moved the vehicle to the side of, or
off, a highway, as defined in 49 CFR 390.5, and has halted in a
location where the vehicle can safely remain stationary.

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

                                                  * * * * * * *