[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Proposed Rules]
[Pages 59197-59204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24114]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

[Docket No. PHMSA-2010-0221 (HM-256)]
RIN 2137-AE63


Hazardous Materials: Limiting the Use of Electronic Devices by 
Highway

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA) proposes to prohibit texting on electronic devices by drivers 
during the operation of a motor vehicle containing a quantity of 
hazardous materials requiring placarding under part 172 of the 49 CFR 
or any quantity of a select agent or toxin listed in 42 CFR part 73. 
Additionally, in accordance with requirements published today by the 
Federal Motor Carrier Safety Administration (FMCSA), motor carriers are 
prohibited from requiring or allowing drivers of covered motor vehicles 
to engage in texting while driving. 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 commercial motor vehicles.

DATES: Comments must be received by October 27, 2010.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2010-0221 by any of the following methods:

[[Page 59198]]

    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Fax: (202) 493-2251.
    <bullet> Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
    <bullet> Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rule. Note that all comments received will be 
posted without change, including any personal information provided. 
Please see the discussion of the Privacy Act below.
    Docket: For access to the docket to read background documents and 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140, Ground Level, Washington, DC between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590 0001.

SUPPLEMENTARY INFORMATION: 

I. Background

A. US DOT Strategy

    The United States Department of Transportation (US DOT) is leading 
the effort to end the dangerous practice of distracted driving on our 
nation's roadways and in other modes of transportation. Driver 
distraction can be defined as the voluntary or involuntary diversion of 
attention from the primary driving tasks due to an object, event, or 
person that shifts the attention away from the fundamental driving 
task. The US DOT has identified three main types of distraction that 
occur while operating a motor vehicle:
    1. Visual--taking your eyes off of the road;
    2. Manual--taking your hands off of the wheel; and
    3. Cognitive--taking your mind off of driving.
    The US DOT is working across the spectrum with private and public 
entities to tackle distracted driving, and will lead by example. The 
individual agencies of the US DOT are working together to share 
knowledge, promote a greater understanding of the issue, and identify 
additional strategies to end distracted driving. Additionally, the 
majority of the 50 states have forbidden texting while driving any 
motor vehicle. See US DOT Distracted Driving Web site, http://www.distraction.gov; see also Insurance Institute for Highway Safety 
Web site, http://www.iihs.org/.

B. PHMSA Distracted Driving Safety Advisory Notice

    In support of the US DOT strategy to end distracted driving, PHMSA 
issued ``Safety Advisory Notice: Personal Electronic Device Related 
Distractions (Safety Advisory Notice No.10-5)'' on August 3, 2010 (75 
FR 45697) to alert the hazardous materials community to the dangers 
associated with the use of mobile phones and electronic devices while 
operating a commercial motor vehicle (CMV; 49 CFR 383.5). In the 
notice, PHMSA stresses the heightened risk of transportation incidents 
involving hazardous materials when CMV drivers are distracted by 
electronic devices. Accordingly, the notice urges motor carriers that 
transport hazardous materials to institute policies and provide 
awareness training to discourage the use of mobile telephones and 
electronic devices by motor vehicle drivers.

C. FMCSA Rulemaking and Definitions

1. FMCSA Rulemakings
    In a final rule published in the Federal Register today entitled, 
``Limiting the Use of Wireless Communication Devices'' the Federal 
Motor Carrier Safety Administration adopted requirements prohibiting 
texting on electronic devices by CMV drivers. FMCSA's final rule adopts 
a prohibition consistent with requirements originally proposed and 
considers comments submitted in response to the original NPRM issued on 
April 1, 2010 under Docket FMCSA-2009-0370 (75 FR 16391). The final 
rule prohibits texting by CMV drivers operating in interstate commerce 
and imposes sanctions for drivers that fail to comply. In both the 
final rule and NPRM FMCSA cites numerous studies evaluating the dangers 
of various forms of distracted driving.
2. Definitions
    In existing Federal Motor Carrier Safety Regulations (FMCSRs; 49 
CFR Parts 350-399) FMCSA defines a ``CMV'' in Sec.  383.5 of the 49 CFR 
as follows:
    Commercial motor vehicle means a motor vehicle or combination of 
motor vehicles used in commerce to transport passengers or property if 
the motor vehicle--
    (a) Has a gross combination weight rating of 11,794 kilograms or 
more (26,001 pounds or more) inclusive of a towed unit(s) with a gross 
vehicle weight rating of more than 4,536 kilograms (10,000 pounds);
    (b) Has a gross vehicle weight rating of 11,794 or more kilograms 
(26,001 pounds or more);
    (c) Is designed to transport 16 or more passengers, including the 
driver; or
    (d) Is of any size and is used in the transportation of hazardous 
materials as defined in this section.
    In a final rule published today addressing the use of wireless 
communication devices by CMV drivers FMCSA defines the terms 
``electronic device'' and ``texting'' in Sec.  383.5 (75 FR 16403) as 
follows:
    Electronic device includes, but is not limited to, a cellular 
telephone; personal digital assistant; pager; computer; or any other 
device used to input, write, send, receive, or read text.
    Texting means manually entering alphanumeric text into, or reading 
text from, an electronic device.
    (1) This action includes, but is not limited to, short message 
service, e-mailing, instant messaging, a command or request to access a 
World Wide Web page, or engaging in any other form of electronic text 
retrieval or entry, for present or future communication.
    (2) Texting does not include:
    (i) Reading, selecting, or entering a telephone number, an 
extension number, or voicemail retrieval codes and commands into an 
electronic device for the purpose of initiating or receiving a phone 
call or using voice commands to initiate or receive a telephone call;
    (ii) Inputting, selecting, or reading information on a global 
positioning system or navigation system; or
    (iii) Using a device capable of performing multiple functions 
(e.g., fleet management systems, dispatching devices, smart phones, 
citizen band radios, music players, etc.) for a purpose that is not 
otherwise prohibited in this part.
    In addition, in today's final rule FMCSA defines the term 
``driving'' in Sec.  392.80(c) as follows:
    Driving means operating a commercial motor vehicle, with the motor 
running, including while temporarily stationary because of traffic, a 
traffic control device, or other momentary delays. Driving does not 
include operating a commercial motor vehicle with or without the motor 
running when the

[[Page 59199]]

driver has moved the vehicle to the side of, or off, a highway and has 
halted in a location where the vehicle can safely remain stationary.

D. Studies, Data, and Analysis on Driver Distractions

    Distracted driving reduces a driver's situational awareness, 
decisionmaking, or performance, possibly resulting in a crash, near-
crash, or unintended lane departure by the driver. In an effort to 
understand and mitigate crashes associated with driver distraction, the 
US DOT has been studying the distracted driving issue with respect to 
both behavioral and vehicle safety countermeasures. Researchers and 
writers classify distraction into various categories, depending on the 
nature of their work. Texting while driving applies to these three 
types of driver distraction (visual, physical, and cognitive), and thus 
may pose a considerably higher safety risk than other sources of driver 
distraction. Below we summarize recommendations, studies, data, and 
analysis that provide the foundation for this NPRM.
1. NTSB Safety Recommendation H-06-27
    On November 14, 2004, a motorcoach crashed into a bridge overpass 
on the George Washington Memorial Parkway in Alexandria, Virginia. This 
crash was the impetus for a National Transportation Safety Board (NTSB) 
investigation and subsequent recommendation (Safety Recommendation H-
06-27) to FMCSA regarding cell phone use by passenger-carrying CMVs. 
The 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.
    In a letter to NTSB dated March 5, 2007, FMCSA agreed to initiate a 
study to assess:
    <bullet> The potential safety benefits of restricting cell phone 
use by drivers of passenger-carrying CMVs;
    <bullet> The applicability of an NTSB recommendation to property-
carrying CMV drivers;
    <bullet> Whether adequate data existed to warrant a rulemaking; and
    <bullet> The availability of statistically meaningful data 
regarding cell phone distraction.
    Subsequently, the report ``Driver Distraction in Commercial Vehicle 
Operations'' was published on October 1, 2009.
2. Driver Distraction in Commercial Vehicle Operations (``the VTTI 
Study'')--Olson et al., 2009 \1\
    Under contract with FMCSA, the Virginia Tech Transportation 
Institute (VTTI) completed its ``Driver Distraction in Commercial 
Vehicle Operations'' study \2\ and released the final report on October 
1, 2009. The purpose of the study was to investigate the prevalence of 
driver distraction in CMV safety-critical events (i.e., crashes, near-
crashes, lane departures, as explained in the VTTI study) recorded in a 
naturalistic data set that included over 200 truck drivers and 3 
million miles of data. The dataset was obtained by placing monitoring 
instruments on vehicles and recording the behavior of drivers 
conducting real-world revenue-producing operations. The study found 
that drivers were engaged in non-driving related tasks in 71 percent of 
crashes, 46 percent of near-crashes, and 60 percent of all safety-
critical events. Tasks that significantly increased risk included 
texting, looking at a map, writing on a notepad, or reading.
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    \1\ Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J. 
(2009) Driver distraction in commercial vehicle operations. 
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor 
Carrier Safety Administration, August 2010, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx?.
    \2\ The formal peer review of the ``Driver Distraction in 
Commercial Vehicle Operations Draft Final Report'' was completed by 
a team of three technically qualified peer reviewers who are 
qualified (via their experience and educational background) to 
critically review driver distraction-related research.
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    Odds ratios (OR) were calculated to identify tasks that were high 
risk. For a given task, an odds ratio of ``1.0'' indicated the task or 
activity was equally likely to result in a safety-critical event as it 
was a non-event or baseline driving scenario. An odds ratio greater 
than ``1.0'' indicated a safety-critical event was more likely to 
occur, and odds ratios of less than ``1.0'' indicated a safety-critical 
event was less likely to occur. The most risky behavior identified by 
the research was ``text message on cell phone,'' \3\ with an odds ratio 
of 23.2. This means that the odds of being involved in a safety-
critical event are 23.2 times greater for drivers who text message 
while driving than for those who do not. Texting drivers took their 
eyes off the forward roadway for an average of 4.6 seconds during the 
6-second interval surrounding a safety-critical event. At 55 mph (or 
80.7 feet per second), this equates to a driver traveling 371 feet, the 
approximate length of a football field, including the end zones, 
without looking at the roadway. At 65 mph (or 95.3 feet per second), 
the driver would have traveled approximately 439 feet without looking 
at the roadway. This clearly creates a significant risk to the safe 
operation of the CMV.
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    \3\ Although the final report does not elaborate on texting, the 
drivers were engaged in the review, preparation, and transmission of 
typed messages via wireless phones.
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    Other tasks that drew drivers' eyes away from the forward roadway 
in the study involved the driver interacting with technology: 
Calculator (4.4 seconds), dispatching device (4.1 seconds), and cell 
phone dialing (3.8 seconds). Technology-related tasks were not the only 
ones with high visual demands. Non-technology tasks with high visual 
demands, including some common activities, were: Reading (4.3 seconds), 
writing (4.2 seconds), looking at a map (3.9 seconds), and reaching for 
an object (2.9 seconds).
    The study further analyzed population attributable risk (PAR), 
which incorporates the frequency of engaging in a task. If a task is 
done more frequently by a driver or a group of drivers, it will have a 
greater PAR percentage. Safety could be improved the most if a driver 
or group of drivers were to stop performing a task with a high PAR. The 
PAR percentage for texting is 0.7 percent, which means that 0.7 percent 
of the incidence of safety-critical events is attributable to texting, 
and thus, could be avoided by not texting.

   Table 1--Odds Ratio and Population Attributable Risk Percentage by
                              Selected Task
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                                                            Population
                                                           attributable
                  Task                      Odds ratio         risk
                                                           percentage *
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Complex Tertiary** Task:

[[Page 59200]]

 
    Text message on cell phone..........            23.2             0.7
    Other--Complex (e.g., clean side                10.1             0.2
     mirror)............................
    Interact with/look at dispatching                9.9             3.1
     device.............................
    Write on pad, notebook, etc.........             9.0             0.6
    Use calculator......................             8.2             0.2
    Look at map.........................             7.0             1.1
    Dial cell phone.....................             5.9             2.5
    Read book, newspaper, paperwork, etc             4.0             1.7
Moderate Tertiary ** Task:
    Use/reach for other electronic                   6.7             0.2
     device.............................
    Other--Moderate (e.g., open medicine             5.9             0.3
     bottle)............................
    Personal grooming...................             4.5             0.2
    Reach for object in vehicle.........             3.1             7.6
    Look back in sleeper berth..........             2.3             0.2
    Talk or listen to hand-held phone...             1.0             0.2
    Eating..............................             1.0               0
    Talk or listen to CB radio..........             0.6             (*)
    Talk or listen to hands-free phone..             0.4             (*)
------------------------------------------------------------------------
* Calculated for tasks where the odds ratio is greater than one.
** Non-driving related tasks.

    A complete copy of the final report for this study is included in 
PHMSA Docket PHMSA-2010-0221, available at http://www.regulations.gov.
3. Text Messaging During Simulated Driving--Drews, et al., 2009 \4\
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    \4\ Drews, F.A., Yazdani, H., Godfrey, C.N., Cooper, J.M., & 
Strayer, D.L. (Dec. 16, 2009). Text messaging during simulated 
driving. Salt Lake City, Utah: The Journal of Human Factors and 
Ergonomics Society Online. First published as doi:10.1177/
0018720809353319. Retrieved December 22, 2009, from http://hfs.sagepub.com/cgi/rapidpdf/0018720809353319?ijkey=gRQOLrGlYnBfc&keytype=ref&siteid=sphfs.
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    This research was designed to identify the impact of text messaging 
on simulated driving performance. Using a high-fidelity driving 
simulator, researchers measured the performance of 20 pairs of 
participants while: (1) Only driving, and (2) driving and text 
messaging. Participants followed a pace car in the right lane, which 
braked 42 times, intermittently. Participants were 0.2 seconds slower 
in responding to the brake onset when driving and text messaging, 
compared to driving-only. When drivers are concentrating on texting, 
either reading or entering, their reaction times to braking events are 
significantly longer.
4. Driver Workload Effects of Cell Phone, Music Player, and Text 
Messaging Tasks With the Ford SYNC Voice Interface Versus Handheld 
Visual-Manual Interfaces (``The Ford Study'')--Shutko, et al., 2009 \5\
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    \5\ Shutko, J., Mayer, J., Laansoo, E., & Tijerina, L. (2009). 
Driver workload effects of cell phone, music player, and text 
messaging tasks with the Ford SYNC voice interface versus handheld 
visual-manual interfaces (paper presented at SAE World Congress & 
Exhibition, April 2009, Detroit, MI). Warrendale, PA: Society of 
Automotive Engineers International. Available from SAE International 
at: http://www.sae.org/technical/papers/2009-01-0786.
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    A recent study by Ford Motor Company,\6\ involving 25 participants, 
compared using a hands-free voice interface to complete a task while 
driving with using personal handheld devices (cell phone and music 
player) to complete the same task while driving. Of particular interest 
were the results of this study with regard to total eyes-off-road time 
when texting while driving. The study found that texting, both sending 
and reviewing a text, was extremely risky. The median total eyes-off-
road time when reviewing a text message on a handheld cell phone while 
driving was 11 seconds. The median total eyes-off-road time when 
sending a text message using a handheld cell phone while driving was 20 
seconds.
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    \6\ The Engineering Meetings Board has approved this paper for 
publication. It has successfully completed SAE's peer review process 
under the supervision of the session organizer. This process 
requires a minimum of three (3) reviews by industry experts.
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5. The Effects of Text Messaging on Young Novice Driver Performance--
Hosking, et al., 2006 \7\
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    \7\ Hosking, S., Young, K., & Regan, M. (February 2006). The 
effects of text messaging on young novice driver performance. 
Victoria, Australia: Monash University Accident Research Centre, 
from: http://www.monash.edu.au/muarc/reports/muarc246.pdf.
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    Hosking studied a very different driver population, but obtained 
similar results. This study used an advanced driving simulator to 
evaluate the effects of text messaging on 20 young, novice Australian 
drivers. The participants were between 18 and 21 years old, and they 
had been driving 6 months or less. Legislation in Australia prohibits 
hand-held phones, but a large proportion of the participants said that 
they use them anyway.
    The young drivers took their eyes off the road while texting, and 
they had a harder time detecting hazards and safety signs, as well as 
maintaining the simulated vehicle's position on the road than they did 
when not texting. While the participants did not reduce their speed, 
they did try to compensate for the distraction of texting by increasing 
their following distance. Nonetheless, retrieving and particularly 
sending text messages had the following effects on driving:
    <bullet> Difficulty maintaining the vehicle's lateral position on 
the road;
    <bullet> Harder time detecting hazards;
    <bullet> Harder time detecting and responding to safety signs;
    <bullet> Up to 400 percent more time with drivers' eyes off the 
road than when not texting.

[[Page 59201]]

6. The Effect of Text Messaging on Driver Behavior: A Simulator Study--
Reed and Robbins, 2008 \8\
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    \8\ Reed, N. & Robbins, R. (2008). The effect of text messaging 
on driver behavior: A simulator study. Report prepared for the RAC 
Foundation by Transport Research Laboratory. From: http://www.racfoundation.org/files/textingwhiledrivingreport.pdf.
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    The RAC Foundation commissioned this report \9\ to assess the 
impact of text messaging on driver performance and the attitudes 
surrounding that activity in the 17- to 24-year old driver category. 
There were 17 participants in the study. The results demonstrated that 
driving was impaired by texting. Researchers reported that ``failure to 
detect hazards, increased response times to hazards, and exposure time 
to that risk have clear implications for safety.'' They reported an 
increased stopping distance of 12.5 meters, or three car lengths, and 
increased variability of lane position.
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    \9\ The work described in this report was carried out in the 
Human Factors and Simulation group of the Transport Research 
Laboratory. The authors are grateful to Andrew Parks who carried out 
the technical review and auditing of this report.
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7. Cell Phone Distraction in Commercial Trucks and Buses: Assessing 
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \10\
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    \10\ 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.
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    The purpose of this research was to conduct an analysis of 
naturalistic data collected by DriveCam[supreg]. The introduction of 
naturalistic driving studies that record drivers (through video and 
kinematic 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; it only 
included recorded events that met or exceeded a kinematic threshold (a 
minimum g-force setting that triggers the event recorder). These 
recorded events included safety-critical events (e.g., hard braking in 
response to another vehicle) and baseline events (i.e., an event that 
was not related to a safety-critical event, such as a vehicle that 
traveled over train tracks and exceeded the kinematic threshold). A 
total of 1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant 
conflicts, and 211,171 baselines were captured in the dataset.
    Odds ratios were calculated to show a measure of association 
between involvement in a safety-critical event and performing non-
driving related tasks, such as dialing or texting. The odds ratios show 
the odds of being involved in a safety-critical event when a non-
driving related task is present compared to situations when there is no 
non-driving related task. The odds ratios for text/email/accessing the 
Internet tasks were very high, indicating a strong relationship between 
text/e-mail/accessing the Internet while driving and involvement in a 
safety-critical event. Very few instances of this behavior were 
observed during safety-critical events in the current study and even 
fewer during control events. Although truck and bus drivers do not text 
frequently, the data suggest that truck and bus drivers who use their 
cell phone to text, e-mail, or access the Internet are very likely to 
be involved in a safety-critical event.

E. Existing Texting Prohibitions and Restrictions by Federal, State, 
and Local Governments

1. Executive Order 13513
    The President immediately used the feedback from the DOT Summit on 
Distracted Driving and issued Executive Order 13513, which ordered 
that:

    Federal employees shall not engage in text messaging (a) when 
driving a Government Owned Vehicle, or when driving a Privately 
Owned Vehicle while on official Government business, or (b) when 
using electronic equipment supplied by the Government while driving.

The Executive Order is applicable to the operation of CMVs by Federal 
government employees carrying out their duties and responsibilities, or 
using electronic equipment supplied by the government. This order also 
encourages contractors to comply while operating CMVs on behalf of the 
Federal government.
2. Regulatory Guidance
    On January 27, 2010, FMCSA published regulatory guidance concerning 
the applicability of 49 CFR 390.17, Additional equipment and 
accessories, to any CMV operator engaged in ``texting'' on an 
electronic device while driving a CMV in interstate commerce (75 FR 
4305). The guidance interpreted Sec.  390.17 as prohibiting texting on 
electronic devices while driving because it decreases the safety of 
operations.
3. Federal Railroad Administration
    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 1, 2008, restricts railroad operating 
employees from using distracting electronic and electrical devices 
while on duty. Among other things, the order prohibits both the use of 
cell phones and texting. FRA cited numerous examples of the adverse 
impact that electronic devices can have on safe operations. These 
examples included fatal accidents that involved operators who were 
distracted while texting or talking on a cell phone. In light of these 
incidents, FRA is imposing restrictions on the use of such electronic 
devices, both through its order and a rulemaking that seeks to codify 
the order. In a NPRM published May 18, 2010, FRA proposed to amend its 
railroad communications regulations by restricting the use of mobile 
telephones and other distracting electronic devices by railroad 
operating employees (75 FR 27672).
4. State Restrictions
    Texting while driving is prohibited in 30 States and the District 
of Columbia. A list of states and territories that have taken such 
actions can be found at the following DOT Web site: http://www.distraction.gov/state-laws. Generally, the state requirements are 
applicable to all drivers operating motor vehicles within those 
jurisdictions, including CMV operators. Because some states do not 
currently prohibit texting while driving, there is a need for a Federal 
regulation to address the safety risks associated with texting by CMV 
drivers. Generally, state laws and regulations remain in effect and 
could continue to be enforced with regard to CMV drivers, provided 
those laws and regulations are compatible with the Federal 
requirements. This proposed rule does not affect the ability of states 
to institute new prohibitions on texting while driving. For more 
information see the Federalism section later in this document.

II. Applicability of This NPRM

    PHMSA's Office of Hazardous Materials Safety is the Federal safety 
authority for the transportation of hazardous materials by air, rail, 
highway, and water. Under the Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the 
Secretary of Transportation is charged with protecting the nation 
against the risks to life, property, and the environment that are 
inherent in the

[[Page 59202]]

commercial transportation of hazardous materials. The Hazardous 
Materials Regulations (HMR; 49 CFR parts 171-180) are promulgated under 
the mandate in Section 5103(b) of Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) that 
the Secretary of Transportation ``prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B) 
provides that the HMR ``shall govern safety aspects, including 
security, of the transportation of hazardous material the Secretary 
considers appropriate.'' As such, PHMSA strives to reduce the risks 
inherent to the transportation of hazardous materials in both 
intrastate and interstate commerce.\11\
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    \11\ The term ``intrastate commerce'' is trade, traffic, or 
transportation within a single state. The term ``interstate 
commerce'' is trade, traffic, or transportation involving the 
crossing of a state boundary. Additionally, ``interstate commerce'' 
includes transportation originating or terminating outside the state 
of United States.
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    The final rule published in the Federal Register today by FMCSA 
under Docket FMCSA-2009-0370 incorporates texting restrictions into 
Sec.  392.80 of the FMCSRs that apply to CMV motor carriers and drivers 
in interstate commerce. During the coordination process for PHMSA's 
August 3, 2010 safety advisory notice on distracted driving, PHMSA and 
FMCSA representatives expressed concern that changes to the FMCSRs 
regarding distracted driving would only apply to motor carriers and 
drivers of CMVs that operate in interstate commerce.\12\ As such, the 
final rule published by FMCSA today regarding distracted driving does 
not apply to motor carriers and drivers that transport a quantity of 
hazardous materials requiring placarding under part 172 of the 49 CFR 
or any quantity of a material listed as a select agent or toxin in 42 
CFR part 73 in intrastate commerce.
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    \12\ In accordance with Sec.  390.3(a) the rules in Subchapter 
B, including Parts 350-399, of the 49 CFR are applicable to all 
employers, employees, and commercial motor vehicles, which transport 
property or passengers in interstate commerce. The only FMCSA 
regulations that are applicable to intrastate operations are: The 
commercial driver's license (CDL) requirement, for drivers operating 
commercial motor vehicles as defined in 49 CFR 383.5; controlled 
substances and alcohol testing for all persons required to possess a 
CDL; and minimum levels of financial responsibility for the 
intrastate transportation of certain quantities of hazardous 
materials and substances.
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    PHMSA developed this NPRM to expand the population of drivers who 
are prohibited from texting by FMCSA's final rule to include drivers 
who transport a quantity of hazardous materials requiring placarding 
under part 172 of the 49 CFR or any quantity of a material listed as a 
select agent or toxin in 42 CFR part 73 in intrastate commerce. The 
safety benefits associated with limiting the distractions caused by 
electronic devices are equally applicable to drivers transporting a 
quantity of hazardous materials requiring placarding under part 172 of 
the 49 CFR or any quantity of a material listed as a select agent or 
toxin in 42 CFR part 73 in intrastate commerce as they are to 
interstate commerce. The use of an electronic device while driving 
constitutes a safety risk to the motor vehicle driver, other motorists, 
and bystanders. As adopted in the FMCSA final rule, the consequences of 
texting while driving a CMV can include state and local sanctions, 
fines, and possible revocation of commercial driver's licenses.

III. Summary of Changes

    In accordance with the comments received and public meeting 
discussion this NPRM proposes the following changes by section:
    Section 177.804. We propose to add a new paragraph (b) to prohibit 
texting by any person transporting a quantity of hazardous materials 
requiring placarding under part 172 of the 49 CFR or any quantity of a 
material listed as a select agent or toxin in 42 CFR part 73. As such, 
motor carriers and drivers who engage in the transportation of covered 
materials must comply with the distracted driving requirements in Sec.  
392.80 of the FMCSRs.

IV. Regulatory Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under authority of the Federal hazardous 
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes 
the Secretary of Transportation to prescribe regulations for the safe 
transportation, including security, of hazardous materials in 
interstate, intrastate, and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    PHMSA has determined that this rulemaking action is a significant 
regulatory action under Executive Order 12866, Regulatory Planning and 
Review, and significant under DOT regulatory policies and procedures 
because of the substantial Congressional and public interest concerning 
the crash risks associated with distracted driving, even though the 
economic costs of the rule do not exceed the $100 million annual 
threshold.
    Executive Order 12866 requires agencies to regulate in the ``most 
cost-effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' As discussed 
throughout this rulemaking, the intent of this NPRM is to expand the 
applicability of FMCSA's final rule and prohibit texting by drivers of 
motor vehicles that contain a quantity of hazardous materials requiring 
placarding under Part 172 of the 49 CFR or any quantity of a material 
listed as a select agent or toxin in 42 CFR Part 73. As a result, the 
population of motor carriers covered by this proposed rule is comprised 
of a very small portion of motor carriers operating in intrastate 
commerce.
    PHMSA's calculated its affected population by assessing hazmat 
registration data from the 2010-2011 registration year. This data is 
collected on DOT form F 5800.2 in accordance with Sec.  107.608(a) of 
the 49 CFR. Generally, the registration requirements apply to any 
person who offers for transportation or transports a quantity of 
hazardous materials requiring placarding under part 172 of the 49 CFR. 
Additional data collected on form F 5800.2 verify that the person is 
indeed a carrier, the mode of transportation used, and the US DOT 
Number.\13\ Using this key data from the registration form submissions 
we can make some assumptions to estimate the number of persons 
registered that we consider motor carriers subject to this NPRM. Based 
on our analysis of form F 5800.2-18,841 persons have registered as 
motor carriers of hazardous materials. Of those 18,841 persons 17,599 
included a US DOT Number. Therefore, based on PHMSA's registration 
data, the difference between persons registered as motor carriers and 
persons that have obtained a US DOT Number is 1,242 (18,841-17,599 = 
1,242). PHMSA considers these persons to be intrastate motor carriers. 
We compared these

[[Page 59203]]

numbers with the FMCSA Motor Carrier Management Information System 
(MCMIS).\14\ Based on MCMIS data we verified that the 1,242 carriers 
identified through registration data have not been issued a US DOT 
Number by FMCSA.
---------------------------------------------------------------------------

    \13\ The FMCSRs require certain commercial carriers to obtain a 
US DOT number by filling out DOT form MC-150 (OMB Control Number 
2126-0013). Companies that operate commercial vehicles transporting 
passengers or hauling cargo in interstate commerce must be 
registered with the FMCSA and must have a US DOT Number. The US DOT 
Number serves as a unique identifier when collecting and monitoring 
a company's safety information acquired during audits, compliance 
reviews, crash investigations, and inspections. FMCSA provides two 
services for people who need to obtain a U.S. DOT number. The MC-150 
form can be downloaded from the FMCSA web site in PDF form and 
mailed in; or, they may file electronically via the Web site. Both 
options are found at the following URL: http://www.fmcsa.dot.gov/factsfigs/formspubs.htm.
    \14\ MCMIS contains information on the safety fitness of 
commercial motor carriers (truck & bus) and hazardous material 
shippers subject to both the FMCSRs and the HMR. This information is 
available to the general public through the MCMIS Data Dissemination 
Program.
---------------------------------------------------------------------------

    To better define the population of intrastate motor carriers 
subject to this rulemaking we assessed the data further. Generally, 
registration data is limited to persons that offer or transport 
placarded quantities of hazardous materials. Registration data does not 
include persons that transport a material listed as a select agent or 
toxin in 42 CFR part 73. In addition, the data includes those 
intrastate motor carriers that are required to obtain a US DOT Number 
through their state even if they operate solely in intrastate commerce. 
FMCSA indicates that 28 states currently require motor carriers to 
obtain a US DOT Number, regardless if they operate in interstate or 
intrastate commerce.\15\ Based on these assumptions, the number of 
intrastate carriers identified through hazmat registration data may be 
underestimated by up to 60% to 70%.
---------------------------------------------------------------------------

    \15\ ``What is a USDOT Number?'' See: http://www.fmcsa.dot.gov/registration-licensing/registration-USDOT.htm.
---------------------------------------------------------------------------

    Another assumption that must be considered is that 30 states and 
the District of Columbia have adopted a broad based ban on texting 
while driving. As a result, it is likely that 60% of the carriers 
identified as intrastate carriers are already subject to a ban on 
texting while driving. Accordingly, this would indicate that the number 
of intrastate carriers identified as uncovered by a texting ban by 
evaluating hazardous materials registration data could be over 
estimated by as much as 60%.
    Based on the assumptions outlined above, and PHMSA's desire to take 
a conservative approach to the affected population, we multiply the 
number of intrastate carriers identified through registration data by a 
20% underreporting factor. This will result in a total population 
affected by this rulemaking of 1,490 intrastate motor carriers (1,242 x 
1.20 = 1,490). In addition to the number of interstate motor carriers, 
PHMSA estimates that each interstate motor carrier employs 
approximately 8 drivers. Therefore, the estimated population of 
intrastate motor carrier drivers affected by this proposed rule is 
11,920 (1,490 x 8 = 11,920). This conservative estimate ensures that 
PHMSA is fully considering the impacts of expanding applicability of 
the FMCSA final rule to prohibit texting by drivers of motor vehicles 
that contain a quantity of hazardous materials requiring placarding 
under part 172 of the 49 CFR or any quantity of a material listed as a 
select agent or toxin in 42 CFR part 73.
    The regulatory evaluation prepared in support of this rulemaking 
considers the following potential costs: (a) Loss in carrier 
productivity due to time spent while parking or pulling over to the 
side of the roadway to perform texting activities; (b) increased fuel 
usage due to idling as well as exiting and entering the travel lanes of 
the roadway; and (c) increased crash risk due to covered CMVs that are 
parked on the side of the roadway and exiting and entering the travel 
lanes of the roadway. The regulatory evaluation also considers 
potential costs to the states. However, since the analysis does not 
yield appreciable costs to the states, further analysis pursuant to the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) was deemed 
unnecessary.
    PHMSA estimates that this proposed rule will cost $5,227 annually. 
Additionally, PHMSA has not identified a significant increase in crash 
risk associated with drivers' strategies for complying with this 
proposed rule. As indicated in the regulatory evaluation, a crash 
resulting in property damage only (PDO) averages approximately $17,000 
in damages. Consequently, the texting prohibition would have to 
eliminate just one PDO crash every 3.25 years for the benefits of this 
proposed rule to exceed the costs. A summary of the costs and threshold 
analysis is provided in the following table:

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cost of Lost Carrier Productivity........  $438
Cost of Increased Fuel Consumption.......  $3,411
Cost of Parking, Entering and Exiting      $1,378
 Roadway Crashes.
                                          ------------------------------
  Total Costs (annual)...................  $5,227
------------------------------------------------------------------------
Benefit of Eliminating One Fatality......  $6 million.
Break-even Number of Lives Saved.........  < 1
------------------------------------------------------------------------

    The productivity losses, as well as other costs, were estimated for 
only one year, as the entire threshold analysis was performed as an 
undiscounted annual estimation. The loss of productivity is expected to 
diminish (but not necessarily vanish within one year), as the motor 
carrier industry adjusts to the texting restriction and as new 
(permissible) technologies arise that compensate for the loss of the 
texting functionality. PHMSA is unaware of the specific future 
technologies that might arise, but we continue to research and monitor 
technological changes in the market.

C. Executive Order 13132

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. A rule has implications for Federalism 
under Executive Order 13132, Federalism, if it has a substantial direct 
effect on state or local governments and would either preempt state law 
or impose a substantial direct cost of compliance on them. We invite 
state and local governments to comment on the effect that the adoption 
of this rule may have on state or local safety or environmental 
protection programs.

D. Executive Order 13175

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this proposed rule does not significantly or uniquely affect 
the communities of the Indian tribal governments and does not impose 
substantial direct compliance costs, the funding and consultation 
requirements of Executive Order 13175 do not apply.

E. 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.
    PHMSA has conducted an economic analysis of the impact of this 
proposed

[[Page 59204]]

rule on small entities and certifies that a Regulatory Flexibility 
Analysis is not necessary because the rule will not have a significant 
economic impact on a substantial number of small entities subject to 
the requirements of this proposed rule. We assume that all of the 1,490 
motor carriers identified by this proposed rule are small entities. 
However, the direct costs of this rule that small entities may incur 
are only expected to be minimal. They consist of the costs of lost 
productivity from foregoing texting while on-duty and fuel usage costs 
for pulling to the side of the road to idle the truck or passenger-
carrying vehicle and send or receive a text message. The majority of 
motor carriers are small entities. Therefore, PHMSA will use the total 
cost of this proposed rule ($5,227) applied to the number of small 
entities (1,490) as a worse case evaluation which would average $3.51 
annually per carrier.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This notice has been developed in accordance with Executive Order 
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'') 
and DOT's procedures and policies to promote compliance with the 
Regulatory Flexibility Act to ensure that potential impacts of draft 
rules on small entities are properly considered.

G. Paperwork Reduction Act

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

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

I. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates, under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$140.8 million or more to either state, local, or tribal governments, 
in the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477 through 19478) or you may visit http://www.dot.gov. This rule is not a privacy-sensitive rulemaking because 
the rule will not require any collection, maintenance, or dissemination 
of Personally Identifiable Information (PII) from or about members of 
the public.

K. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and that they prepare a detailed statement on actions significantly 
affecting the quality of the human environment. PHMSA assessment did 
not reveal any significant positive or negative impacts on the 
environment expected to result from the rulemaking action. There could 
be minor impacts on emissions, hazardous materials spills, solid waste, 
socioeconomics, and public health and safety. Interested parties are 
invited to address the potential environmental impacts of regulations 
applicable to texting while driving.

List of Subjects in 49 CFR Part 177

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

    In consideration of the foregoing, 49 CFR Chapter I is proposed to 
be amended as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

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

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

    2. Section 177.804 is amended by:
    a. Designating the extisting text as paragraph (a);
    b. Adding a heading to the newly designated paragraph (a); and
    c. Adding a new paragraph (b) to read as follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

    (a) General. * * *
    (b) Prohibition against texting. Drivers of commercial motor 
vehicles, as defined in 49 CFR 383.5, transporting a quantity of 
hazardous materials requiring placarding under 49 CFR part 172 or any 
quantity of a material listed as a select agent or toxin in 42 CFR part 
73 are prohibited from texting while driving in accordance with Sec.  
392.80 of the FMCSRs.

    Issued in Washington, DC, on September 21, 2010, under authority 
delegated in 49 CFR part 106.
R. Ryan Posten,
Senior Director for Hazardous Materials Safety.
[FR Doc. 2010-24114 Filed 9-24-10; 8:45 am]
BILLING CODE 4910-60-P