80014 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

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. 

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 handheld 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: 202–493–2251. 

• Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

• Hand delivery: Same as mail 

address above, between 9 a.m. and 

5 p.m., e.t., Monday through Friday, 

except Federal holidays. The telephone 

number is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rule, contact Mr. Brian Routhier, 

Transportation Specialist, Federal Motor 

Carrier Safety Administration, Vehicle 

and Roadside Operation Division, at 

202–366–4325 or 

FMCSA_MCPSV@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

II. Abbreviations 

III. Background 

A. 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 81⁄2; 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 80015 

1Olson, 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-publicreports.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. 

3See Section D. Studies of Mobile Telephone Use 

While Driving for a full discussion. 

4National 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. 

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 

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. 

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. 

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. 

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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
80016 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

5 IIHS list of cellphone laws. http://www.iihs.org/ 

laws/cellphonelaws.aspx 

6Former 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). 

7The 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). 

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 handheld 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. 

This rulemaking would improve 

safety on the Nation’s highways by 

reducing the prevalence of, or 

preventing, certain truck- and busrelated 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 nonstatutory 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 80017 

8http://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. 

exemptions, FMCSA has authority to 

restrict the use of mobile telephones by 

drivers operating CMVs. 

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

In light of these incidents and the 

potential for more crashes due to 


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10National 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. 

11Parker, 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/

MCSACTask09-01FinalReportandLetterto

Administrator090428.pdf. 

12U.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. 

13U.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. 

14National Safety Council, (n.d.). Distracted 

Driving. Retrieved July 21, 2010, from: http:// 

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. 

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. 

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

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). 

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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 80019 

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%20

Statement%20by%20Judith%20

Stone%20October%201,%202009.pdf. 

16American 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%20

Driving%20testimony.pdf. 

17Boyce, 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 

18Halsey, 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-anddriving/. 

20OOIDA (n.d.). Distracted Driving. Retrieved 

from the OOIDA Web site, July 22, 2010, from: 

http://ooida.com/Issues&Actions/Issues/

DistractedDriving/distracted-driving.htm. 

21Truckload Carriers Association (March 8, 

2009). Safe Use of Technology. Retrieved July 21, 

2010, from: http://www.truckload.org/Safe-Use-ofTechnology. 

22Pantuso, 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. 

23ABA Strategic Safety Committee (2010). 

Recommended Model Company Policy: Cell Phones 

and Electronic Devices (REDs). Available in the 

docket for this rulemaking. 

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. 

25American 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: 

Continued 

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

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 nonintegrated technologies while the 

vehicle is in motion.17

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. 

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

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 pretrip 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). 

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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http://www.americanschoolbuscouncil.org/

uploads/pdf/Guidelines_Release.pdf. 

26APTA 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. 

27Olson, 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/researchtechnology/report/FMCSA-RRR-09-042.pdf. 

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

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 realworld 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

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, nearcrashes, crash-relevant conflicts, and 

unintentional lane deviations. 


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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 riskincreasing 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 safetycritical 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. 


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80022 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

28Hickman, 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. 

29 Kinematics is a branch of physics that deals 

with the motion of a body or system without 

reference to force and mass. 

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 NearCrashes28

The purpose of this research was to 

conduct an analysis of naturalistic data 

collected by DriveCam®. 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. 

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 safetycritical 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 crashrelevant 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 nondriving related task is present compared 


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30Harbluk, 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. 

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/carnegiemellon.pdf. 

32Hancock, 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=b40e15505

a9c7b04bd3c6aa3c42a5777&ie=/sdarticle.pdf. 

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. 

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 subtasks, 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. 

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 roadmaintenance 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. 

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. 

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. 

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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
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34Massachusetts 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=. 

35Chicago 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. 

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. 

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

• 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

• 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

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 handheld 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 


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37Although 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. 

38The 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. 

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 § 383.5) who is convicted 

of violating a State or local traffic law 

or ordinance on motor vehicle traffic 

control restricting or prohibiting handheld 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 

§ 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. 

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 handsfree 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

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, 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
80026 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

39The 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. 

dialing, and holding the mobile 

telephone to conduct voice 

communication. The Agency recognizes 

that mobile telephones often have multifunctional 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 

§ 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 § 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 § 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)). 

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 handheld 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 § 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 § 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 

§ 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 80027 

40 In popular usage, mobile telephones are often 

referred to as ‘‘cell phones.’’ As explained in the 

NPRM, however, a variety of different technologies 

Continued 

in the table for the texting 

disqualification (§ 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 § 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 handheld mobile telephone use (such as 

proposed in § 392.82) and the related 

disqualification (such as proposed in 

§ 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 handheld 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 handheld, 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 handheld mobile telephone,’’ such as handsfree 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 


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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. 

41Cohen, 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. 42Olson, 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-publicreports.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. 

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. 

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. 

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 passengercarrying CMV for all interstate drivers, 

and (4) a restriction on the use of handheld 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) 

Total estimated annual 

costs * 

Annual break-even number of fatalities 

prevented ** 

Option Four—Restriction on Use of Hand-Held Mobile Telephones—All 

CMV Drivers.

$12.1 Million *** ........... Approximately 2 Fatalities. 

TABLE 2(B)—COST-BENEFIT ANALYSIS RESULTS—OPTION TWO (RESTRICTION ON USE OF ALL MOBILE TELEPHONES—ALL

CMV DRIVERS) 

Estimated annual benefit Estimated annual cost Estimated annual net benefit 

$84 Million ......................................................... $80 Million ........................................................ $4 Million. 

TABLE 2(C)—THRESHOLD ANALYSIS RESULTS—OPTION THREE

Total estimated annual 

costs * 

Annual break-even number of fatalities 

prevented ** 

Option Three—Restriction on Use of All Mobile Telephones—All Passenger-Carrying CMV Drivers.$6.4 Million ................. Approximately 1 Fatality. 

* 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 


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43FMCSA Regulatory Analysis, ‘‘Hours of Service 

of Drivers; Driver Rest and Sleep for Safe 

Operations,’’ Final Rule (68 FR 22456, April 23, 

2003). 

44The 2000 TTS Blue Book of Trucking 

Companies, number adjusted to 2008 dollars for 

inflation. 

45U.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. 

46MCMIS, as of June 17, 2010. 

47FMCSA Large Truck and Bus Crash Facts 2008, 

Tables 1 and 20; http://fmcsa.dot.gov/factsresearch/LTBCF2008/Index-2008. 

48MCMIS, as of June 17, 2010. 

49The total cost in this section does not include 

costs to the States. 

50The 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. 

51Excluding costs to the States. 

52Regulatory 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. 

53The 2000 TTS Blue Book of Trucking 

Companies, number adjusted to 2008 dollars for 

inflation. 

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. 

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. 

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. 

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. 

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 


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80030 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

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 privacysensitive 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 


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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. 

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 § 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: 

§ 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 twoway or Citizens Band Radio services. 

* * * * * 

Texting means manually entering 

alphanumeric text into, or reading text 

from, an electronic device. 

(1) This action includes, but is not 

limited to, short message service, emailing, instant messaging, a command 

or request to access a World Wide Web 

page, 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 § 383.51 by adding a new 

paragraph (c)(10) to Table 2 to read as 

follows: 

§ 383.51 Disqualifications of drivers. 

* * * * * 

(c)* * * 

TABLE 2 TO § 383.51 

If the driver operates a motor vehicle 

and is convicted of: 

For a second conviction of 

any combination of offenses 

in this Table in a separate 

incident within a 3-year period while operating a CMV, 

a person required to have a 

CDL and a CDL holder must 

be disqualified from operating a CMV for . . . 

For a second conviction of 

any combination of offenses 

in this Table in a separate 

incident within a 3-year period while operating a nonCMV, a CDL holder must be 

disqualified from operating a 

CMV, if the conviction results in the revocation, cancellation, or suspension of 

the CDL holder’s license or 

non-CMV driving privileges, 

for . . . 

For a third or subsequent 

conviction of any combination of offenses in this Table 

in a separate incident within 

a 3-year period while operating a CMV, a person required to have a CDL and a 

CDL holder must be disqualified from operating a 

CMV for . . . 

For a third or subsequent 

conviction of any combination of offenses in this Table 

in a separate incident within 

a 3-year period while operating a non-CMV, a CDL 

holder must be disqualified 

from operating a CMV, if the 

conviction results in the revocation, cancellation, or suspension of the CDL holder’s 

license or non-CMV driving 

privileges, for . . . 

*******

(10) Violating a 

State or local law 

or ordinance on 

motor vehicle traffic control restricting or prohibiting 

the use of a 

hand-held mobile 

telephone while 

driving a CMV.2

60 days ................................ Not applicable ...................... 120 days .............................. Not applicable. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
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* * * * * 

PART 384—STATE COMPLIANCE 

WITH COMMERCIAL DRIVER’S 

LICENSE PROGRAM 

4. The authority citation for part 384 

continues to read as follows: 

Authority: 49 U.S.C. 31136, 31301 et seq., 

and 31502; secs. 103 and 215 of Pub. L. 106– 

159, 113 Stat. 1753, 1767; and 49 CFR 1.73. 

5. Amend § 384.301 by adding a new 

paragraph (f) to read as follows: 

§ 384.301 Substantial compliance— 

general requirements. 

* * * * * 

(f) A State must come into substantial 

compliance with the requirements of 

subpart B of this part in effect as of 

[INSERT EFFECTIVE DATE] as soon as 

practical, but not later than [INSERT 

DATE 3 YEARS AFTER THE 

EFFECTIVE DATE]. 

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS; 

GENERAL 

6. The authority citation for part 390 

continues to read as follows: 

Authority: 49 U.S.C. 508, 13301, 13902, 

31133, 31136, 31144, 31151, 31502, 31504; 

sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 

(49 U.S.C. 701 note); sec. 114, Pub. L. 103– 

311, 108 Stat. 1673, 1677; sec. 217, 229, Pub. 

L. 106–159, 113 Stat. 1748, 1767, 1773; and 

49 CFR 1.73. 

7. Amend § 390.3 by revising 

paragraphs (f)(1) and (f)(6) to read as 

follows: § 390.3 General applicability. 

* * * * * 

(f) * * * 

(1) All school bus operations as 

defined in § 390.5, except for the 

provisions of §§ 391.15(f), 392.80 and 

392.82 of this chapter. 

* * * * * 

(6) The operation of commercial 

motor vehicles designed or used to 

transport between 9 and 15 passengers 

(including the driver), not for direct 

compensation, provided the vehicle 

does not otherwise meet the definition 

of a commercial motor vehicle, except 

that motor carriers and drivers operating 

such vehicles are required to comply 

with §§ 390.15, 390.19, 390.21(a) and 

(b)(2), 391.15(f), 392.80 and 392.82. 

* * * * * 

8. Amend § 390.5 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:. 

§ 390.5 Definitions. 

* * * * * 

Mobile telephone means a mobile 

communication device that falls under 

or uses any commercial mobile radio 

service, as defined in regulations of the 

Federal Communications Commission, 

47 CFR 20.3. It does not include twoway or Citizens Band Radio services. 

* * * * * 

Texting means manually entering 

alphanumeric text into, or reading text 

from, an electronic device. 

(1) This action includes, but is not 

limited to, short message service, emailing, instant messaging, a command 

or request to access a World Wide Web 

page, 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. 

PART 391—QUALIFICATION OF 

DRIVERS AND LONGER 

COMBINATION VEHICLE (LCV) 

DRIVER INSTRUCTIONS 

9. The authority citation for part 391 

continues to read as follows: 

Authority: 49 U.S.C. 322, 504, 508, 31133, 

31136, and 31502; sec. 4007(b) of Pub. L. 

102–240, 105 Stat. 2152; sec. 114 of Pub. L. 

103–311, 108 Stat. 1673, 1677; sec. 215 of 

Pub. L. 106–159, 113 Stat. 1767; and 49 CFR 

1.73. 

10. Revise § 391.2 to read as follows: 

§ 391.2 General exceptions. 

(a) Farm custom operation. The rules 

in this part, except for § 391.15 (e) and 

(f), do not apply to a driver who drives 

a commercial motor vehicle controlled 

and operated by a person engaged in 

custom-harvesting operations, if the 

commercial motor vehicle is used to— 

(1) Transport farm machinery, 

supplies, or both, to or from a farm for 

custom-harvesting operations on a farm; 

or 

(2) Transport custom-harvested crops 

to storage or market. 

(b) Apiarian industries. The rules in 

this part, except for § 391.15 (e) and (f), 

do not apply to a driver who is 

operating a commercial motor vehicle 

controlled and operated by a beekeeper 

engaged in the seasonal transportation 

of bees. 

(c) Certain farm vehicle drivers. The 

rules in this part, except for § 391.15 (e) 

and (f), do not apply to a farm vehicle 

driver except a farm vehicle driver who 

drives an articulated (combination) 

commercial motor vehicle, as defined in 

§ 390.5. For limited exemptions for farm 

vehicle drivers of articulated 

commercial motor vehicles, see 

§ 391.67. 

11. Amend § 391.15 by adding a new 

paragraph (f) to read as follows: 

§ 391.15 Disqualification of drivers. 

* * * * * 

(f) Disqualification for violation of a 

restriction on using a hand-held mobile 

telephone while driving a commercial 

motor vehicle— 

(1) General rule. A driver who is 

convicted of violating the restriction on 

using a hand-held mobile telephone in 

§ 392.82(a) of this chapter is disqualified 

from driving a commercial motor 

vehicle for the period of time specified 

in paragraph (f)(2) of this section. 

(2) Duration. Disqualification for 

violation of a restriction on using a 

hand-held mobile telephone while 

driving a commercial motor vehicle— 

(i) Second violation. A driver is 

disqualified for 60 days if the driver is 

convicted of two violations of 

§ 392.82(a) of this chapter in separate 

incidents committed during any 3-year 

period. 

(ii) Third or subsequent violation. A 

driver is disqualified for 120 days if the 

driver is convicted of three or more 

violations of § 392.82(a) of this chapter 

in separate incidents committed during 

any 3-year period. 

PART 392—DRIVING OF COMMERCIAL 

MOTOR VEHICLES 

12. The authority citation for part 392 

continues to read as follows: 

Authority: 49 U.S.C. 13902, 31136, 31151, 

31502; and 49 CFR 1.73. 

13. Add a new § 392.82 to subpart H 

to read as follows: 

§ 392.82 Restriction on using a hand-held 

mobile telephone. 

(a) Restriction. (1) Drivers. No driver 

shall use a hand-held mobile telephone 

mobile while driving a CMV. 

(2) Motor Carriers. No motor carrier 

shall allow or require its drivers to use 

a hand-held mobile telephone while 

driving a CMV. 

(b) Definitions. For the purpose of this 

section only, driving means operating a 

commercial motor vehicle, with the 

motor running, including while 


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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 80033 

temporarily stationary because of traffic, 

a traffic control device, or other 

momentary delays. Driving does not 

include operating a commercial motor 

vehicle with or without the motor 

running when the driver has moved the 

vehicle to the side of, or off, a highway 

and has halted in a location where the 

vehicle can safely remain stationary. 

(c) Exceptions. (1) School bus 

operations and vehicles designed or 

used to transport 9 to 15 passengers, 

including the driver, not for direct 

compensation. The provisions of 

§ 390.3(f)(1) and (6) of this chapter are 

not applicable to this section. 

(2) Emergencies. Using a hand-held 

mobile telephone is permissible by 

drivers of a CMV when necessary to 

communicate with law enforcement 

officials or other emergency services. 

Issued on: December 13, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–31736 Filed 12–20–10; 8:45 am] 

BILLING CODE 4910–EX–P 


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