59118 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

rerouted under paragraph (b)(2) of this 

section, the railroad shall also establish 

that the remaining risk arising from rail 

operations on the track segment— 

pertaining to events that can be 

prevented or mitigated in severity by a 

PTC system—is less than the average 

equivalent risk per route mile on track 

segments required to be equipped with 

PTC because of annual gross tonnage 

and the presence of PIH materials traffic 

(excluding track segments also carrying 

passenger traffic). Such average 

equivalent risk shall be determined as of 

a time prior to installation of PTC on the 

line segments. This provision of the rule 

requires a future rulemaking to finalize 

and implement a risk evaluation 

methodology. Lines identified for 

removal subject to this provision will 

not be required to be equipped with 

PTC prior to the issuance of a final rule 

detailing the methodology. 

(i) FRA will develop a risk evaluation 

methodology for the purpose of 

conducting the analysis required 

pursuant to paragraph (b)(3) of this 

section. The risk evaluation 

methodology will be finalized through a 

separate rulemaking proceeding that 

will permit all interested parties to 

provide input on the specific 

methodology and, whether that 

methodology should be employed. If in 

the rulemaking proceeding FRA 

determines that a risk methodology 

should not be employed, then FRA will 

amend this final rule to eliminate the 

residual risk provisions. 

(ii) Any track segment qualifying for 

consideration under paragraph (b)(3) of 

this section and identified by the 

railroad for requested removal from the 

PTCIP shall be considered to be 

‘‘pending for decision’’ until such time 

as FRA has published the risk 

evaluation methodology identified in 

paragraph (b)(3)(i) of this section. If a 

final risk evaluation methodology is 

employed, the railroad may be 

requested to provide supplemental 

information related to its request for 

removal of specific lines. The railroad is 

not required to commence installation 

of PTC on any track segment ‘‘pending 

for decision’’ under this paragraph, until 

a final FRA determination is made. 

(c) If a track segment qualifies for 

removal from the PTCIP under 

paragraphs (b)(1) and (b)(2) of this 

section but does not meet the test of 

paragraph (b)(3) of this section, the 

railroad may nevertheless request that 

the PTCIP be amended to remove the 

track segment based upon compensating 

reductions in the risk related to PTCpreventable accidents based on 

installation of PTC technology on one or 

more track segments not otherwise 

required to be equipped. Upon a proper 

showing that the increment of risk 

reduction is at least as great on the 

substitute line as it would be on the line 

sought to be excluded from the PTCIP, 

FRA may approve the substitution. 

Issued in Washington, DC, on September 

15, 2010. 

Joseph C. Szabo, 

Administrator. 

[FR Doc. 2010–24102 Filed 9–24–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

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

392 

[Docket No. FMCSA–2009–0370] 

RIN 2126–AB22 

Limiting the Use of Wireless 

Communication Devices 

AGENCY: Federal Motor Carrier Safety 

Administration, DOT. 

ACTION: Final rule. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

prohibits texting by commercial motor 

vehicle (CMV) drivers while operating 

in interstate commerce and imposes 

sanctions, including civil penalties and 

disqualification from operating CMVs in 

interstate commerce, for drivers who fail 

to comply with this rule. Additionally, 

motor carriers are prohibited from 

requiring or allowing their drivers to 

engage in texting while driving. FMCSA 

amends its commercial driver’s license 

(CDL) regulations to add to the list of 

disqualifying offenses a conviction 

under State or local traffic laws or 

ordinances that prohibit texting by CDL 

drivers while operating a CMV, 

including school bus drivers. Recent 

research commissioned by FMCSA 

shows that the odds of being involved 

in a safety-critical event (e.g., crash, 

near-crash, unintentional lane 

deviation) is 23.2 times greater for CMV 

drivers who engage in texting while 

driving than for those who do not. This 

rulemaking increases safety on the 

Nation’s highways by reducing the 

prevalence of or preventing certain 

truck- and bus-related crashes, fatalities, 

and injuries associated with distracted 

driving. 

DATES: The final rule is effective 

October 27, 2010. 

ADDRESSES: For access to the docket to 

read background documents, including 

those referenced in this document, or to 

read comments received, go to http:// 

www.regulations.gov at any time and 

insert FMCSA–2009–0370 in the 

‘‘Keyword’’ box, and then click ‘‘Search.’’ 

You may also view the docket online by 

visiting the Docket Management Facility 

in Room W12–140, DOT Building, 1200 

New Jersey Avenue, SE., Washington, 

DC, between 9 a.m. and 5 p.m. e.t., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this rule, 

contact the Federal Motor Carrier Safety 

Administration, Vehicle and Roadside 

Operation Division, at 202–366–1225 or 

FMCSA_MCPSV@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble 

I. Abbreviations 

II. Background 

A. Legal Authority 

B. Overview of Driver Distraction and 

Texting 

C. Support for a Texting Prohibition 

D. Investigations and Studies on Driver 

Distraction 

E. Existing Texting Prohibitions and 

Restrictions by Federal, State, and Local 

Governments 

III. Discussion of Comments 

IV. Discussion of Rule 

V. Regulatory Analyses 

I. Abbreviations 

AAMVA ............................................................. American Association of Motor Vehicle Administrators. 

Advocates ......................................................... Advocates for Highway and Auto Safety. 

AIA .................................................................... American Insurance Association. 

APTA ................................................................ American Public Transportation Association. 

ATA ................................................................... American Trucking Associations, Inc. 

ATU ................................................................... Amalgamated Transit Union. 

CDL ................................................................... Commercial Driver’s License. 

CeRI .................................................................. Cornell eRulemaking Initiative. 

CMV .................................................................. Commercial Motor Vehicle. 

CTA ................................................................... Chicago Transit Authority. 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59119 

CVSA ................................................................ Commercial Vehicle Safety Alliance. 

DOT .................................................................. U.S. Department of Transportation. 

FARS ................................................................ Fatality Analysis Reporting System. 

FMCSA ............................................................. Federal Motor Carrier Safety Administration. 

FMCSRs ........................................................... Federal Motor Carrier Safety Regulations. 

FR ..................................................................... Federal Register. 

FRA ................................................................... Federal Railroad Administration. 

GES .................................................................. General Estimates System. 

MCSAC ............................................................. Motor Carrier Safety Advisory Committee. 

MCSAP ............................................................. Motor Carrier Safety Assistance Program. 

NAICS ............................................................... North American Industry Classification System. 

NCSL ................................................................ National Conference of State Legislators. 

NGA .................................................................. National Governors Association. 

NHTSA .............................................................. National Highway Traffic Safety Administration. 

NMVCCS .......................................................... National Motor Vehicle Crash Causation Survey. 

NPRM ............................................................... Notice of Proposed Rulemaking. 

NSC .................................................................. National Safety Council. 

NTSB ................................................................ National Transportation Safety Board. 

OMB .................................................................. Office of Management and Budget. 

OOIDA .............................................................. Owner-Operator Independent Drivers Association, Inc. 

PAR .................................................................. Population Attributable Risk. 

TTD ................................................................... Transportation Trades Department, AFL–CIO. 

TWU .................................................................. Transportation Workers Union of America, AFL–CIO. 

UMA .................................................................. United Motorcoach Association. 

VTTI .................................................................. Virginia Tech Transportation Institute. 

II. Background 

On April 1, 2010, FMCSA published 

a notice of proposed rulemaking in the 

Federal Register (75 FR 16391). FMCSA 

reviewed the over 400 public comments 

and made some changes in the final rule 

in response. These changes are 

described in part IV, Discussion of the 

Final Rule, Section-by-Section, of the 

preamble. 

A. Legal Authority 

FMCSA amends the Federal Motor 

Carrier Safety Regulations (FMCSRs): (1) 

To prohibit texting using electronic 

devices by certain drivers while 

operating CMVs in interstate commerce; 

(2) to provide sanctions for certain 

drivers convicted of texting while 

operating a CMV in interstate 

commerce, including civil penalties 

and/or disqualification from driving 

CMVs, as defined in 49 CFR 390.5, for 

a specified period of time; and (3) to 

provide sanctions for CDL drivers 

convicted of violating a State or local 

traffic law or ordinance prohibiting 

texting while operating a CMV, 

specifically, a disqualification for a 

specified period of time from operating 

any CMV. The authority for this rule 

derives from the Motor Carrier Safety 

Act of 1984 (Pub. L. 98–554, Title II, 98 

Stat. 2832, Oct. 30, 1984), 49 U.S.C. 

chapter 311 (1984 Act), and the 

Commercial Motor Vehicle Safety Act of 

1986 (Title XII of Pub. L. 99–570, 100 

Stat. 3207–170, Oct. 27, 1986), 49 U.S.C. 

chapter 313 (1986 Act). 

The 1984 Act provides authority to 

regulate the safety of operations of CMV 

drivers and motor carriers and vehicle 

equipment. It requires the Secretary of 

Transportation to ‘‘prescribe regulations 

on commercial motor vehicle safety. 

The regulations shall prescribe 

minimum safety standards for 

commercial motor vehicles’’ (49 U.S.C. 

31136(a)). Although this authority is 

very broad, the 1984 Act also includes 

specific requirements: 

At a minimum, the regulations shall ensure 

that—(1) commercial motor vehicles are 

maintained, equipped, loaded, and operated 

safely; (2) the responsibilities imposed on 

operators of commercial motor vehicles do 

not impair their ability to operate the 

vehicles safely; (3) the physical condition of 

operators of commercial motor vehicles is 

adequate to enable them to operate the 

vehicles safely; and (4) the operation of 

commercial motor vehicles does not have a 

deleterious effect on the physical condition 

of the operators. Id. 

This rule is based primarily on 49 

U.S.C. 31136(a)(1), which requires 

regulations that ensure that CMVs are 

operated safely, and secondarily on 

section 31136(a)(2), to the extent that 

drivers’ texting activities might impact 

their ability to operate CMVs safely. The 

changes improve the safety of drivers 

operating CMVs. This rule does not 

address the physical condition of 

drivers (49 U.S.C. 31136(a)(3)), nor does 

it impact possible physical effects 

caused by driving CMVs (49 U.S.C. 

31136(a)(4)). 

The applicability to CMV drivers of 

the relevant provisions of the FMCSRs 

(49 CFR subtitle B, chapter III, 

subchapter B), is governed by whether 

the drivers involved are employees 

operating a CMV. The 1984 Act defines 

a CMV as a self-propelled or towed 

vehicle used on the highways to 

transport persons or property in 

interstate commerce 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 (including the 

driver), not for compensation; or (4) is 

transporting any quantity of hazardous 

materials requiring placards to be 

displayed on the vehicle (49 U.S.C. 

31132(1)). All employees operating 

CMVs are subject to the FMCSRs, except 

those who are employed by Federal, 

State, or local governments (49 U.S.C. 

31132(2)). 

In addition to the statutory exemption 

of government employees, there are 

several other regulatory exemptions in 

the FMCSRs that are authorized under 

the 1984 Act, including, 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 (3)—(7)). The 

school bus operations exemption only 

applies to interstate transportation of 

school children and/or school personnel 

between home and school. This 

exemption is not based on any statutory 

provisions, but is instead a discretionary 

rule promulgated by the Agency. 

Therefore, FMCSA has authority to 

modify the exemption. Modification of 

the school bus operations exemption 

requires the Agency to find that such 

action ‘‘is necessary for public safety, 

considering all laws of the United States 

and States applicable to school buses’’ 

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59120 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

1Former 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), Pub. L. 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). 

2The exemption in 49 CFR 390.3(f)(6) was not 

adopted until 2003, after the enactment of TEA–21. 

See Safety Requirements for Operators of Small 

Passenger-Carrying Commercial Motor Vehicles 

Used In Interstate Commerce, at 68 FR 47860 (Aug. 

12, 2003). 

(former 49 U.S.C. 31136(e)(1)).1

Likewise, FMCSA has authority to 

modify the non-statutory exemption for 

small passenger-carrying CMVs not for 

direct compensation; however, FMCSA 

is not required to make a finding that 

such action is ‘‘necessary for public 

safety.’’ 2 Other than transportation 

covered by statutory exemptions, 

FMCSA has authority to prohibit texting 

by drivers operating CMVs, as defined 

above. 

For any violations by CMV drivers or 

employers of the requirements adopted 

in this final rule, civil penalties may be 

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). In summary, both a texting 

prohibition and associated sanctions, 

including civil penalties and 

disqualifications, are authorized by 

statute and regulation for operators of 

CMVs, as defined above, in interstate 

commerce, with limited exceptions. 

However, before prescribing any 

regulations under the 1984 Act, FMCSA 

must consider their costs and benefits 

(49 U.S.C. 31136(c)(2)(A)). 

The 1986 Act, which authorized 

creation of the CDL program, is the basis 

for State licensing programs for certain 

large CMVs. There are several key 

distinctions between the authority 

conferred under the 1984 Act and that 

under the 1986 Act. First, the CMV for 

which a CDL is required is defined 

under the 1986 Act, in part, as a motor 

vehicle operating ‘‘in commerce,’’ a term 

separately defined to cover broadly both 

interstate commerce and operations that 

‘‘affect’’ interstate commerce (49 U.S.C. 

31301(2), (4)). Also under the 1986 Act, 

a CMV means a motor vehicle used in 

commerce to transport passengers or 

property that: (1) Has a gross vehicle 

weight/gross vehicle weight rating of 

26,000 pounds or greater; (2) is designed 

to transport 16 or more passengers 

including the driver; or (3) is used to 

transport certain quantities of 

‘‘hazardous materials,’’ as defined in 49 

CFR 383.5 (49 U.S.C. 31301(4)). In 

addition, a provision in the FMCSRs 

implementing the 1986 Act recognizes 

that all school bus drivers (whether 

government employees or not) and other 

government employees operating 

vehicles requiring a CDL (i.e., vehicles 

above 26,000 pounds in most States, or 

designed to transport 16 or more 

passengers) are subject to the CDL 

standards set forth in 49 CFR 383.3(b). 

There are several statutory and 

regulatory exceptions from the CDL 

requirements, which include the 

following individuals: active duty 

military service members who operate a 

CMV for military purposes (a mandatory 

exemption for the States to follow) (49 

CFR 383.3(c)), farmers, firefighters, CMV 

drivers employed by a unit of local 

government for the purpose of snow/ice 

removal, and persons operating a CMV 

for emergency response activities (all of 

which are permissive exemptions for 

the States to implement at their 

discretion) (49 CFR 383.3(d)). Certain 

other drivers could be issued restricted 

CDLs under 49 CFR 383.3(e)–(g), such 

drivers may be covered by a texting 

disqualification under the 1986 Act. 

The 1986 Act does not expressly 

authorize the Agency to adopt 

regulations governing the safety of 

operations of CMVs by drivers required 

to obtain a CDL. Most of these drivers 

are subject to safety regulations under 

the 1984 Act, as described above. The 

1986 Act, however, specifically 

authorizes the disqualification of CDL 

drivers for various types of offenses. 

This is true even if drivers have not 

obtained a CDL and are therefore 

operating a CMV illegally. Related 

rulemaking authority exists to include 

serious traffic violations as grounds for 

such disqualifications (49 U.S.C. 

31301(12) and 31310). 

Further, in addition to specifically 

enumerated ‘‘serious traffic violations,’’ 

the 1986 Act allows FMCSA to 

designate violations by rulemaking if 

the underlying offense is based on the 

CDL driver committing a violation of a 

‘‘State or local law on motor vehicle 

traffic control’’ (49 U.S.C. 31301(12)(G)). 

The FMCSRs state, however, that unless 

and until a CDL driver is convicted of 

the requisite number of specified 

offenses within a certain time frame 

(described below), the required 

disqualification may not be applied (49 

CFR 383.5 (defining ‘‘conviction’’ and 

‘‘serious traffic violation’’) and 

§ 383.51(c)). 

Under the statute, a driver who, in a 

3-year period, commits 2 serious traffic 

violations involving a CMV operated by 

the individual must be disqualified from 

operating a CMV for at least 60 days. A 

driver who, in a 3-year period, commits 

3 or more serious traffic violations 

involving a CMV operated by the 

individual must be disqualified from 

operating a CMV for at least 120 days 

(49 U.S.C. 31310(e)(1)–(2)). FMCSA 

determined that violations by CDL 

drivers of State motor vehicle traffic 

control laws prohibiting texting while 

driving CMVs should result in a 

disqualification under this provision, 

because texting results in distracted 

driving and increases the risk of CMV 

crashes, fatalities, and injuries. 

Consequently, under its statutory 

authority to find that the violation of a 

State texting law constitutes a serious 

traffic violation for CMV drivers, 

FMCSA may exercise its rulemaking 

authority to address this major safety 

risk by requiring the States to disqualify 

CDL drivers who violate such laws. 

FMCSA is authorized to carry out 

these statutory provisions by delegation 

from the Secretary of Transportation as 

provided in 49 CFR 1.73(e) and (g). 

B. Overview of Driver Distraction and 

Texting 

This rulemaking addresses one type of 

driver distraction. Driver distraction can 

be defined as the voluntary or 

involuntary diversion of attention from 

the primary driving tasks due to an 

object, event, or person that shifts the 

attention away from the fundamental 

driving task. The diversion reduces a 

driver’s situational awareness, decision 

making, or performance; and it may 

result in a crash, near-crash, or 

unintended lane departure by the 

driver. 

In an effort to understand and 

mitigate crashes associated with driver 

distraction, the U.S. Department of 

Transportation (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. In work involving 

equipment such as vehicles, one 

distraction classification system 

includes three categories: visual (taking 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59121 

3Madden, M. & Lenhart, A. (November 2009). 

Teens and distracted driving. Pew Research 

Center’s Pew Internet and American Lifer Project. 

Available in the docket: FMCSA–2009–0370–0004. 

4Parker, David R., Chair, Motor Carrier Safety 

Advisory Committee (March 27, 2009). Letter to 

Rose A. McMurray on MCSAC national agenda for 

motor vehicle safety. Retrieved August 24, 2010, 

from: http://mcsac.fmcsa.dot.gov/documents/

MCSACTask09–01FinalReportandLetterto

Administrator090428.pdf. 

5 DOT press release 156–09, Thursday, October 1, 

2009. 

6AAA Foundation for Traffic Safety (October 12, 

2009). Safety culture: text messaging and cell phone 

use while driving. Retrieved August 24, 2010, from: 

http://www.aaafoundation.org/pdf/

TextingFS091012.pdf. 

7Connelly, M. (November 1, 2009). Many in U.S. 

want texting at the wheel to be illegal. 

NYTimes.com. Retrieved August 24, 2010, from: 

http://www.nytimes.com/2009/11/02/technology/

02textingside.html. 

one’s eyes off the road), physical (taking 

one’s hands off the wheel), and 

cognitive (thinking about something 

other than the road/driving). Texting 

while driving applies to these three 

types of driver distraction (visual, 

physical, and cognitive), and thus may 

pose a considerably higher safety risk 

than other sources of driver distraction. 

Prevalence of Texting 

Texting while driving is a relatively 

new phenomenon among cell phone 

and personal digital assistant (PDA) 

users. DOT acknowledges that the 

potential for the problem is increasing, 

especially with young drivers on our 

roadways, as noted in a Pew Research 

Center Report, ‘‘Teens and Distracted 

Driving.’’ 3 According to the CTIA—The 

Wireless Association, the overall 

number of text messages transmitted by 

its members’ customers increased from 

32.6 billion in the first 6 months of 2005 

to 740 billion in the first 6 months of 

2009. This represents a 2,200 percent 

increase in 5 years. While FMCSA’s 

research reveals significant insight into 

the safety risks associated with texting 

while driving, the Agency does not 

have, at this time, data on the 

prevalence of texting by motorists in 

general or CMV drivers specifically. 

Considering the increase in texting, 

FMCSA maintains that texting by CMV 

drivers while operating on public roads 

has the potential of becoming a 

widespread safety problem in the 

absence of an explicit Federal 

prohibition. FMCSA prohibits this 

inherently unsafe practice to reduce the 

risks of crashes, injuries, and fatalities. 

C. Support for a Texting Prohibition 

Based on the response to the 

Distracted Driving Summit, the 

Secretary’s appearances on national 

television and this rulemaking, FMCSA 

determined there is a considerable 

amount of public support for a ban on 

texting while operating a motor vehicle. 

It is likely that most Americans either 

had firsthand experience with or know 

someone who had a motor vehicle crash 

or near-crash event involving a 

distracted driver. With the 

exponentially increasing use of 

electronic devices, numerous crashes, 

and other incidents related to distracted 

driving in recent years, expedited 

Federal action is required. 

FMCSA’s Motor Carrier Safety Advisory 

Committee’s Recommendation 

Section 4144 of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU), 

Public Law 109–59, 119 Stat. 1144, 1748 

(Aug. 10, 2005), required the Secretary 

of Transportation to establish a Motor 

Carrier Safety Advisory Committee 

(MCSAC). The committee provides 

advice and recommendations to the 

FMCSA Administrator on motor carrier 

safety programs and regulations and 

operates in accordance with the Federal 

Advisory Committee Act (5 U.S.C. App. 

2). 

In its March 27, 2009, report to 

FMCSA, ‘‘Developing a National Agenda 

for Motor Carrier Safety,’’ MCSAC 

recommended that FMCSA adopt new 

Federal rules concerning distracted 

driving, including texting.4 MCSAC 

believed the available research shows 

that cognitive distractions pose a safety 

risk and that there will be increases in 

crashes from cell phone use and texting 

unless the problem is addressed. 

Therefore, one of MCSAC’s 

recommendations for the National 

Agenda for Motor Carrier Safety was 

that FMCSA initiate a rulemaking to 

prohibit texting while driving. 

Distracted Driving Summit 

The information and feedback DOT 

received during its Distracted Driving 

Summit, held September 30–October 1, 

2009, in Washington, DC, demonstrated 

both a need and widespread support for 

a ban against texting while driving. 

Attendees included safety experts; 

researchers; elected officials, including 

four United States Senators and several 

State legislators; safety advocacy groups; 

senior law enforcement officials; the 

telecommunications industry; and the 

transportation industry. At the 

conclusion of the Summit, Secretary 

LaHood stated, ‘‘Keeping Americans safe 

is without question the Federal 

government’s highest priority—and that 

includes safety on the road, as well as 

on mass transit and rail.’’ 5 In addition, 

the Secretary pledged to work with 

Congress to ensure that the issue of 

distracted driving is appropriately 

addressed. 

Summit participants shared their 

expertise, experiences, and ideas for 

reducing distracted driving behaviors. 

They addressed the safety risk posed by 

this growing problem across all modes 

of surface transportation. At the 

conclusion of the Summit, U.S. 

Transportation Secretary Ray LaHood 

announced a series of concrete actions 

that the Obama Administration and 

DOT are taking to address distracted 

driving. On October 1, 2009, the 

President issued Executive Order 13513 

entitled ‘‘Federal Leadership on 

Reducing Text Messaging While 

Driving’’ (74 FR 51225; October 6, 2009), 

which prohibited texting by Federal 

employees (details are discussed later in 

this preamble). 

Actions following the Summit 

included DOT’s plan to immediately 

start rulemakings that would ban texting 

and restrict, to the extent possible, the 

use of cell phones by truck and 

interstate bus operators, as well as to 

initiate rulemaking by the Federal 

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 result 

of the Summit, and based on data from 

studies on distracted driving, FMCSA is 

considering a number of actions to 

combat distracted driving by CMV 

drivers. 

General Public 

Several surveys show that there is 

public support for a texting prohibition. 

For example, a survey in December 2008 

by the AAA Foundation for Traffic 

Safety determined that 94.1 percent of 

drivers consider it unacceptable for a 

driver to send text messages or e-mail 

while driving; 86.7 percent consider text 

messaging and e-mailing by drivers to 

be a very serious threat to their personal 

safety.6 A CBS News/New York Times 

poll reported that 90 percent of 

Americans think texting behind the 

wheel should be outlawed. Over 94 

percent of those who admit to texting or 

e-mailing while driving acknowledge 

that it makes them at least a little bit 

more likely to be involved in a crash.7

Finally, a nationally representative 

survey by Nationwide Insurance, 

conducted in August 2009, found that 

80 percent of Americans support laws 

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59122 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

8 Gillespie, C. (August 31, 2009). New Nationwide 

Insurance survey shows overwhelming support for 

laws banning texting while driving: Data suggests 

legislation alone will not solve the problem. 

Nationwide.com. Retrieved January 11, 2010, from: 

http://www.nationwide.com/newsroom/twd-surveyresults.jsp. 

9National Safety Council, (n.d.). Distracted 

driving. Retrieved August 24, 2010, from: http:// 

www.nsc.org/safety_road/Distracted_Driving/Pages/

distracted_driving.aspx. 

10 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 August 24, 2010, 

from the Advocates for Highway and Auto Safety 

Web site: http://www.saferoads.org/files/file/

Distracted%20Driving%20Statement%20by

%20Judith%20Stone%20October

%201,%202009.pdf. 

11American 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 August 24, 2010, from: 

http://www.truckline.com/Newsroom/Testimony1/

Randy%20Mullett%20—%20Distracted%20Driving

%20testimony.pdf. 

12American Trucking Associations (October 14, 

2009). ATA leaders vote overwhelmingly to support 

anti-texting bill. Retrieved August 24, 2010, from: 

http://www.truckline.com/pages/article.aspx?

id=52%2F0599B3C5-1DA2-463F-8FE5- 

AF9814303C64. 

13Halsey, A. (October 2, 2009). Obama Bans 

Federal Employees From Texting While Driving. 

Washingtonpost.com. Retrieved August 24, 2010, 

from: http://www.washingtonpost.com/wp-dyn/ 

content/article/2009/10/01/

AR2009100103447_pf.html. 

14 Insurance Information Institute (December 

2009). Cellphones and driving. Retrieved August 

24, 2010, from: http://www.iii.org/IU/Cellphoneand-driving/. 

15Hood, C., President of the National Association 

of State Directors of Pupil Transportation Services 

(August 7, 2009). Letter to Senators Schumer, 

Menendez, Hagan and Landrieu. Retrieved August 

24, 2010, from: http://www.nasdpts.org/documents/ 

alert_act-nasdpts-support.pdf. 

16Olson, 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. 

Available in the docket: FMCSA–2009–0370–0005. 

17The 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 distractionrelated research. 

prohibiting text messaging or e-mailing 

while driving.8

Safety Advocacy Organizations 

Many safety advocacy groups have 

voiced support for a prohibition on 

texting while driving. In January 2009, 

the National Safety Council (NSC) 

called for a nationwide prohibition on 

all cell phone use while driving.9 NSC 

is focused on alerting the American 

public to the fact that different 

distractions have different levels of 

crash risk. NSC stated that sending text 

messages has a much higher risk than 

most other actions that drivers take 

while driving. Additionally, Advocates 

for Highway and Auto Safety 

(Advocates) applauded DOT’s effort to 

ban texting by truck and motor coach 

drivers.10

Transportation Industry Associations 

The American Trucking Associations 

(ATA) believe 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.11 In 

2009, ATA’s executive committee voted 

overwhelmingly to support S.1536, the 

‘‘Avoiding Life-Endangering and 

Reckless Texting by Drivers Act of 2009 

(the ‘‘ALERT Drivers Act’’) a pending bill 

introduced by Senator Schumer on July 

29, 2009, that seeks to prohibit texting 

while driving by all motorists.12 The 

ALERT Drivers Act also amends title 23, 

of the U.S. Code, to reduce the amount 

of Federal highway funding available to 

States that do not enact a law 

prohibiting an individual from writing, 

sending, or reading text messages while 

operating a motor vehicle. 

ATA also conducted an opinion 

survey of its safety committees on the 

use of ‘‘non-integrated electronic 

devices’’ and found that many motor 

carriers do not allow drivers to operate 

any electronic devices at all while the 

vehicle is moving, including 

dispatching equipment. 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.13 Additionally, ExxonMobil 

and Shell are examples of large 

companies that prohibit employees’ use 

of any type of cell phone while driving 

during work hours.14 Because numerous 

large commercial trucking operations 

already have policies that prohibit the 

use of electronic devices while driving, 

which would presumably include 

texting, a prohibition on texting is not 

expected to have an adverse impact on 

a majority of trucking fleets. 

School Bus Operations 

School bus operations have been the 

focus of distracted driving policies; 

many cities, towns, and counties 

prohibit cell phone use or texting by 

school bus operators. The National 

Association of State Directors of Pupil 

Transportation Services, in a letter to 

the U.S. Senate dated August 7, 2009, 

stated that it supports the ALERT 

Drivers Act (S. 1536).15

Transit Agencies 

The importance of the distracted 

driving issue has led virtually all transit 

agencies to ban the use of cell phones 

and electronic devices or specifically to 

ban texting while operating a vehicle in 

passenger service. For example, the 

Chicago Transit Authority (CTA) 

prohibits texting by employees and 

discharges offenders. Furthermore, 

several large transit agencies 

(Massachusetts Bay Transportation 

Authority, CTA, and Greater Cleveland 

Region Transit Authority) have 

prohibited operators from carrying cell 

phones or other electronic devices in 

the cab, presumably prohibiting texting. 

D. Investigations and Studies on Driver 

Distraction 

On November 14, 2004, a motorcoach 

crashed into a bridge overpass on the 

George Washington Memorial Parkway 

in Alexandria, Virginia. This crash was 

the impetus for a National 

Transportation Safety Board (NTSB) 

investigation and subsequent 

recommendation (Safety 

Recommendation H–06–27) to FMCSA 

regarding cell phone use by passengercarrying 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, 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’’ was published on 

October 1, 2009. 

Driver Distraction in Commercial 

Vehicle Operations (‘‘the VTTI 

Study’’)—Olson et al., 200916

Under contract with FMCSA, the 

Virginia Tech Transportation Institute 

(VTTI) completed its ‘‘Driver Distraction 

in Commercial Vehicle Operations’’ 

study 17 and released the final report on 

October 1, 2009. The purpose of the 

study was to investigate the prevalence 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59123 

18Although the final report does not elaborate on 

texting, the drivers were engaged in the review, 

preparation, and transmission of typed messages via 

wireless phones. 

of driver distraction in CMV safetycritical events (i.e., crashes, nearcrashes, 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 revenueproducing operations. The study found 

that drivers were engaged in nondriving 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. 

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 safetycritical event as it was a non-event or 

baseline driving scenario. An odds ratio 

greater than ‘‘1.0’’ indicated a safetycritical 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,’’ 18 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. 

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 safetycritical 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

Task Odds ratio 

Population 

attributable 

risk 

percentage* 

Complex Tertiary** Task: 

Text message on cell phone ............................................................................................................................ 23.2 0.7 

Other—Complex (e.g., clean side mirror) ........................................................................................................ 10.1 0.2 

Interact with/look at dispatching device ........................................................................................................... 9.9 3.1 

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 device .............................................................................................................. 6.7 0.2 

Other—Moderate (e.g., open medicine bottle) ................................................................................................. 5.9 0.3 

Personal grooming ........................................................................................................................................... 4.5 0.2 

Reach for object in vehicle ............................................................................................................................... 3.1 7.6 

Look back in sleeper berth ............................................................................................................................... 2.3 0.2 

Talk or listen to hand-held phone .................................................................................................................... 1.0 0.2 

Eating ................................................................................................................................................................ 1.0 0 

Talk or listen to CB radio ................................................................................................................................. 0.6 * 

Talk or listen to hand-free phone ..................................................................................................................... 0.4 * 

* Calculated for tasks where the odds ratio is greater than one. 

** Non-driving related tasks. 

A complete copy of the final report for 

this study is included in the docket 

referenced at the beginning of this 

rulemaking notice. 

In addition to FMCSA-sponsored 

research, the Agency considered other 

research reports and studies that 

highlight the safety risks of distracted 

driving, in general, or of texting, 

specifically. These studies conclude that 

texting is extremely risky and that it 

impairs a driver’s ability to respond to 

driving situations. Most of these studies 

were small simulator studies, involving 

young automobile drivers. However, 

they provide support for the 

conclusions of the comprehensive study 

of CMV operations commissioned by 

FMCSA and conducted by VTTI. One 

limitation of the VTTI study was that 

the data used were collected 

naturalistically, and not in a controlled 

environment; the ‘‘cognitive distraction’’ 

effects of driver behaviors could not 

easily be determined. This information, 

which includes ongoing research, is 

summarized below. 

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19 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. Available in the 

docket: FMCSA–2009–0370–0006. 

20Shutko, 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 visualmanual interfaces (paper presented at SAE World 

Congress & Exhibition, April 2009, Detroit, MI). 

Warrendale, PA: Society of Automotive Engineers 

International. Available in the docket: FMCSA– 

2009–0370–0007. 

21The 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. 

22Hosking, S., Young, K., & Regan, M. (February 

2006). The effects of text messaging on young 

novice driver performance. Victoria, Australia: 

Monash University Accident Research Centre. 

Available in the docket: FMCSA–2009–0370–0008. 

23Reed, N. & Robbins, R. (2008). The effect of text 

messaging on driver behaviour: A simulator study. 

Report prepared for the RAC Foundation by 

Transport Research Laboratory. Available in the 

docket: FMCSA–2009–0370–0009. 

24The work described in this report was carried 

out in the Human Factors and Simulation group of 

the Transport Research Laboratory. Andrew Parkes 

carried out the technical review and auditing of this 

report. 

25Hickman, 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, September 2010. http:// 

www.fmcsa.dot.gov/facts-research/art-publicreports.aspx. 

Text Messaging During Simulated 

Driving—Drews, et al., 2009 19

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. 

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 20

A recent study by Ford Motor 

Company,21 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-offroad time when texting while driving. 

The study found that texting, both 

sending and reviewing a text, was 

extremely risky. The median total eyesoff-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. 

The Effects of Text Messaging on Young 

Novice Driver Performance—Hosking, et 

al., 200622

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 handheld 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: 

• Difficulty maintaining the vehicle’s 

lateral position on the road. 

• Harder time detecting hazards. 

• Harder time detecting and 

responding to safety signs. 

• Up to 400 percent more time with 

drivers’ eyes off the road than when not 

texting. 

The Effect of Text Messaging on Driver 

Behavior: A Simulator Study — Reed 

and Robbins, 200823

The RAC Foundation commissioned 

this report 24 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. 

Cell Phone Distraction in Commercial 

Trucks and Buses: Assessing Prevalence 

in Conjunction With Crashes and NearCrashes—Hickman25

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 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 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 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/e-mail/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 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59125 

26See 75 FR 16391 (April 1, 2010). 

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 

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. 

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 § 390.17 as prohibiting 

texting on electronic devices while 

driving because it decreases the safety of 

operations. As of the effective date of 

this final rule, the guidance will be 

withdrawn because this final rule makes 

the guidance on texting no longer 

necessary. The Agency does not intend 

to remove the authority to cite drivers 

under § 390.17 for unsafe operation of a 

CMV. Section 390.17 still applies to any 

use of additional equipment and 

accessories that decreases the safety of 

operation of the CMVs on which they 

are used. 

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 notice of proposed 

rulemaking (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). 

State Restrictions 

Texting while driving is prohibited in 

30 States, the District of Columbia, the 

Virgin Islands, and Guam. 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. This final rule restriction 

provides uniform language applicable to 

CMV drivers engaged in interstate 

commerce, regardless of the presence or 

absence of a State law or regulation. 

Generally, State laws and regulations 

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 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. 

III. Discussion of Comments 

FMCSA received approximately 400 

comments in response to the NPRM.26

The commenters included associations 

representing trucking, motorcoaches, 

public transportation, highway safety, 

the legal and law enforcement 

communities, the insurance industry, 

and bicyclists. Three unions 

representing drivers submitted 

comments, as well as representatives of 

State governments. Commenters from 

the general public included motorists 

and bicyclists concerned with their 

safety when operating around CMVs. In 

addition, FMCSA received comments 

from the new Cornell eRulemaking 

Initiative (CeRI), summarizing the 

points raised by participants in a pilot 

project called Regulation Room (http:// 

www.regulationroom.com). 

Most commenters supported the 

proposal because of the potential safety 

benefits for all vehicle and pedestrian 

traffic sharing the roadway with CMVs. 

Commenters felt that texting while 

driving, especially while driving a CMV, 

is dangerous and should be prohibited. 

Many commenters cited crashes or nearcrashes with a distracted driver in 

which they, or someone they knew, 

were involved; in some cases a fatality 

occurred. Many commenters felt that the 

use of mobile telephones has become so 

much a part of people’s lives that it will 

be difficult to get people to stop using 

these devices in vehicles. A few 

commenters suggested that, just as with 

seat belts, airbags, and driving while 

impaired, the government must 

establish regulations concerning texting 

to protect public health and safety. 

Only a few commenters did not 

support a ban on texting. Some 

commenters said that the responsibility 

should be addressed by the States, with 

guidance from the Federal government. 

Several commenters suggested that the 

Agency mandate outreach, education, 

and company policies in lieu of a 

prohibition. 

The Agency approached the 

distracted driving issue by taking action 

on the riskiest issue first, by initiating 

rulemaking to prohibit texting by CMV 

drivers. The use of mobile telephones, 

including texting, is occurring 

increasingly. By approaching this 

complex subject with a focus, on the 

unsafe behavior regardless of the 

technology, FMCSA received the 

support of its stakeholders to act quickly 

to stop texting in CMVs. Subsequently, 

FMCSA will evaluate other aspects of 

distracted driving and consider future 

actions. 

Dispatching Devices and Fleet 

Management Systems 

Many commenters were concerned 

that FMCSA excepted texting on 

dispatching devices from this 

rulemaking. The American Association 

for Justice believed that FMCSA should 

go further and prohibit CMV operators 

from using on-board computers while 

driving. The Commercial Vehicle Safety 

Alliance (CVSA) commented that 

FMCSA should prohibit not only 

dispatching devices, but many other 

technologies that cause distractions. 

NSC held that fleet management devices 

and on-board and laptop systems should 

not be exempt from the rule. Advocates 

noted that it interpreted the NPRM to 

prohibit all texting while driving, even 

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59126 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

when using such systems as dispatch 

devices and laptop computers. The 

Owner-Operator Independent Drivers 

Association (OOIDA) also stated that 

small-business motor carriers use 

different electronic devices, such as 

laptops, to perform many of the same 

functions served by fleet management 

systems. OOIDA believed that it was not 

fair to ban these devices and not other 

dispatch or fleet management devices. 

Some commenters agreed with the 

proposed exception for other electronic 

devices in this rulemaking. ATA 

supported the exclusion of in-cab fleet 

management systems, global positioning 

systems, and navigation systems, while 

noting that potential safety risks of 

using these other systems are not fully 

known. The American Moving and 

Storage Association and the National 

Solid Wastes Management Association 

agreed that the prohibition should not 

include the use of electronic 

dispatching tools and fleet management 

equipment. 

FMCSA Response: 

Notwithstanding the position of 

industry associations, the blanket 

exception to the texting ban has been 

revised to prohibit texting on a 

dispatching device or a device that is 

part of a fleet management system. 

However, it does not prohibit use of the 

other functions of such devices for 

purposes other than texting, as defined 

in the final rule. Texting on a 

dispatching device is indistinguishable 

from texting on another text-capable 

device and is, therefore, prohibited in 

this final rule. Texting is risky because 

it causes the driver to remove his or her 

eyes from the forward roadway, 

regardless of the device used to text. 

The Agency does not see any necessity 

for drivers to read text messages or type 

text responses on any device while the 

vehicle is being operated on public 

roads. Using a device, including a 

dispatch device or in-cab fleet 

management system, for functions other 

than texting is not prohibited by this 

rule. Consequently, the Agency is 

revising the definition of texting and 

clarifying the regulatory text to make it 

clear that the rule prohibits texting on 

any device. 

Other Texting Exceptions 

Several commenters requested 

clarification of the definition of texting 

and other activities that could be 

considered a form of texting. Advocates 

and the American Insurance Association 

(AIA) were concerned with the 

exception for ‘‘entering a telephone 

number, an extension number, or 

voicemail retrieval codes and 

commands into an electronic device. 

***’’ They believe that the physical 

actions required to enter a telephone 

number and perform other excepted 

tasks involve at least visual and 

physical distraction, if not cognitive as 

well. They appear to differ from text 

messaging only in terms of duration. In 

addition, AIA was concerned that these 

exceptions, if not carefully provided for, 

might undercut the ability of law 

enforcement to effectively enforce the 

ban. AHAS also stated that the Agency 

should use the definition of texting 

contained in E.O. 13513. 

FMCSA Response: 

The Agency agrees that drivers should 

always concentrate on the road and, 

therefore, does not condone any unsafe 

activity while driving a CMV. In order 

to respond quickly to an unsafe driving 

behavior by CMV drivers on our 

Nation’s highways, FMCSA chose to 

address the texting issue first because 

research indicates that it is a very 

dangerous activity based on the VTTI 

study. 

Small Passenger-Carrying Vehicles 

Advocates commented that texting by 

drivers operating small buses, 

transporting 9 to 15 passengers 

including a driver, who are not required 

to have a CDL, would not be prohibited 

by this regulation. Advocates also stated 

that, given the serious safety problems 

involving small buses and 15 passenger 

vans used in interstate commerce, 

leaving non-school bus passengercarrying CMVs without Federal 

protection from texting while driving is 

inappropriate. 

FMCSA Response: 

FMCSA agrees that these drivers 

should be included in the final rule; 

and, in fact, most would have been 

covered. On February 1, 2010, in 

response to section 4136 of SAFETEA– 

LU, FMCSA published a final rule that 

removed the regulatory exception for 

small vehicles transporting passengers 

for direct compensation operated within 

75 miles of the driver’s starting location 

(Safety Requirements for Operators of 

Small Passenger-Carrying Commercial 

Motor Vehicles Used in Interstate 

Commerce, 75 FR 4996). Drivers 

employed by such carriers were covered 

by the proposed texting rule, and are 

still covered by this final rule. Beyond 

that, however, the final rule will also 

now cover drivers of small-passenger 

carrying vehicles (designed or used to 

transport 9–15 passengers), not 

receiving direct compensation, that are 

otherwise exempt from most of the 

FMCSRs under 49 CFR 390.3(f)(6), for 

example hotel and rental car shuttle 

services. The Agency includes this 

driver group in the final rule to cover as 

many vehicle drivers as possible, within 

its statutory authority. 

Enforcement Mechanisms 

The Transportation Trades 

Department, AFL CIO (TTD) and the 

Amalgamated Transit Union (ATU) 

expressed concern that, although 

proposed § 392.80 states that ‘‘no motor 

carrier shall allow or require its drivers 

to engage in texting while driving,’’ the 

NPRM does not articulate any 

enforcement mechanism to hold 

employers responsible for violations of 

the provision. 

ATA also asked the Agency to modify 

the regulatory text to more clearly 

define the term ‘‘allow’’ in proposed 

§ 392.80. For example, if the motor 

carrier has a policy that prohibits 

texting and has evidence that it has 

imposed progressive discipline on 

drivers found in violation of the policy, 

the motor carrier should not be held 

accountable for texting violations. The 

United Motorcoach Association (UMA) 

and the National Association of 

Motorcoach Operators had similar 

comments on part 392. UMA stated a 

preference for language that directs 

carriers to develop policy and training 

that instructs drivers to comply with 

Federal laws pertaining to texting while 

driving. 

FMCSA Response: 

FMCSA believes that enforcement 

mechanisms are already in place. Many 

commenters may not realize that motor 

carriers and employers that allow or 

require their drivers to text would be 

subject to civil penalties of up to 

$11,000, as already provided in 49 

U.S.C. 521(b)(2)(A), 49 CFR 386.81, and 

Appendix B to 49 CFR part 386, 

paragraph (a)(3). The prohibition as it 

applies to motor carriers, to not ‘‘allow 

or require its drivers to engage in texting 

while driving,’’ is similar to other 

regulations applicable to carriers and 

employers, which have been in effect for 

many decades (49 CFR 390.11). 

Therefore, FMCSA does not believe a 

clearer definition of ‘‘allow’’ is 

necessary. FMCSA notes that neither the 

industry nor unions have expressed 

difficulty achieving compliance with 

similar, if not identical, regulatory 

language elsewhere in the FMCSRs. 

In response to UMA and NAMO 

comments, due to the serious nature of 

texting while driving, FMCSA believes 

a regulatory duty should be imposed on 

the carrier directly. Carriers may 

institute internal policies and programs, 

including educational programs, to meet 

this duty. 

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School Bus Operations 

ATU believed it is unnecessary to 

extend the ban to public school bus 

drivers. 

FMCSA Response: 

FMCSA is precluded by statute from 

applying the FMCSRs to employees of 

Federal, State and local governments, 

even when they are engaged in 

transportation in interstate commerce 

(49 U.S.C. 31132(2) and (3)). This would 

include drivers of school buses 

employed by such government entities. 

However, drivers employed by private 

entities providing school bus 

transportation under contract to 

government entities will be covered, if 

they are engaged in interstate 

transportation. In addition, both 

government and private drivers of 

school buses requiring a CDL would be 

subject to the CDL disqualification if 

they are convicted of 2 or more serious 

traffic violations, which can include a 

conviction for violating a State traffic 

law prohibiting texting while driving. 

Transit Agencies 

In response to a request in the NPRM, 

comments were received from 

representatives of several transit 

industry interests (i.e., the American 

Public Transportation Association 

(APTA), ATU, Simi Valley Transit) 

outlining existing policies that include 

the prohibition of texting on any device, 

personal or transit agency-specific, 

while operating transit vehicles. APTA 

expressed its support for the rule, and 

provided its recommended practice that 

outlines distractions that should be 

prohibited, including personal 

electronic devices, as well as other 

common distractions such as reading 

print material and consuming food. 

ATU stated that it is unnecessary to 

extend the ban on texting to transit 

employees because virtually all transit 

agencies already have a ban on the use 

of cell phones and electronic devices 

while operating a vehicle. ATU 

commented that it is important to 

recognize the differences between a 

long-haul bus system and a local transit 

system, and allow exceptions for transit 

agencies, whether operated by Federal, 

State, or local government. Simi Valley 

Transit supports the prohibition and 

notes that its operators are prohibited 

from texting on any type of 

communication systems in their 

vehicles. 

FMCSA Response: 

It is unsafe to text while operating a 

CMV regardless of the operating 

differences among motorcoach, school 

bus, or local transit system vehicles. 

There have been instances where transit 

vehicles were involved in an incident or 

crash while the driver was using a 

mobile phone or electronic device and 

that activity was noted as a possible 

contributing factor. In June 2008, a 

video of a San Antonio bus crash was 

aired on major news networks. The 

video shows a city bus driver texting at 

the wheel moments before crashing into 

a sport utility vehicle. 

However, FMCSA acknowledges that 

the government exemption applies to 

many transit and school bus operations 

and their drivers. These drivers are only 

subject to the CDL disqualification if the 

violation occurs in a State that has State 

or local traffic laws prohibiting texting 

while driving as a serious traffic offense. 

However, the Agency included as many 

passenger-carrying drivers as possible, 

within the scope of its statutory 

authority. 

Preemption of State and Local Laws 

In response to a request for comments 

on both texting policies and their 

enforcement and on the applicability of 

State laws and local ordinances to 

school bus drivers, the Transportation 

Workers Union of America, AFL–CIO 

(TWU) stated that ‘‘this proposal needs 

to minimize the preemption and keep 

guidelines leveled,’’ citing the 

provisions of 49 U.S.C. 31136(c)(2)(B). 

CVSA commented that the rules should 

not preempt the States’ ability to take 

additional measures with respect to 

non-CDL commercial drivers operating 

in intrastate commerce. They were 

concerned that the proposed rules might 

directly or indirectly require the States 

to ‘‘categorize’’ all currently exempted 

non-CDL drivers operating in intrastate 

commerce into the regulations. CVSA 

suggested that such actions should be 

left to the States through their 

individual laws as they deem 

appropriate. Any intent to bring these 

drivers into the regulations should be 

accomplished through a separate 

rulemaking. 

FMCSA Response: 

In the most general sense, under longstanding principles, the FMCSRs 

establish minimum safety regulations 

that may be supplemented by the States, 

as long as they are consistent with the 

regulations. The NPRM described the 

effect of the proposed rules in 

accordance with provisions already in 

the FMCSRs, which establish the basis 

for the scope of any preemption (75 FR 

at 16398). Specifically, 49 CFR 390.9 

states: 

Except as otherwise specifically indicated, 

subchapter B of this chapter [III of Title 49, 

CFR] is not intended to preclude States or 

subdivisions thereof from establishing or 

enforcing State or local laws relating to 

safety, the compliance with which would not 

prevent full compliance with these 

regulations by the persons subject thereto. 

This provision allows the States and 

their subdivisions to enforce their laws 

and regulations relating to safety, as 

long as that would not preclude persons 

subject to the FMCSRs from fully 

complying with them. This provision 

satisfies the requirements of 49 U.S.C. 

31136(c)(2)(B) by minimizing 

unnecessary preemption and allowing 

the States to establish additional 

regulations that do not prevent full 

compliance with the FMCSRs. (See also 

49 U.S.C. 31141(c).) 

In the case of States receiving grants 

under the Motor Carrier Safety 

Assistance Program (MCSAP), however, 

there has been a continuous progression 

towards uniform CMV safety standards 

for both interstate and intrastate 

transportation since MCSAP was first 

enacted as part of the Surface 

Transportation Assistance Act of 1982, 

§§ 401–404, Public Law 97–424, 96 Stat. 

2097, 2154 (Jan. 6, 1983). The statute 

directs the Agency to provide grants to 

the States for, among other things, ‘‘the 

enforcement of regulations, standards, 

and orders of the [Federal] Government 

on commercial motor vehicle safety 

* * * and compatible State regulations, 

standards and orders’’ (49 U.S.C. 

31102(a)). 

Following the enactment of section 

4002(l) of Intermodal Surface 

Transportation Efficiency Act of 1991, 

Public Law 102–240, 105 Stat. 1914, 

2144 (Dec. 19, 1991) (ISTEA), the 

Agency utilized that statutory authority 

to establish conditions for States that 

received MCSAP grants to preempt 

incompatible State regulation of CMV 

safety (Motor Carrier Safety Assistance 

Program, 57 FR 13572, 13579–81 (Apr. 

16, 1992) (NPRM) and 57 FR 40946, 

40951–52 (Sep. 8, 1992) (final rule)). 

The Agency noted (at 57 FR 13580) that: 

Section 4002(l) of the ISTEA directs the 

Secretary to issue final regulations specifying 

tolerance guidelines and standards for 

ensuring compatibility of intrastate 

commercial motor vehicle safety laws and 

regulations with the Federal motor carrier 

safety regulations under the MCSAP. The 

[Agency] has always administered the 

MCSAP in a way that would promote the 

enforcement by State agencies regardless 

whether the inspected commercial motor 

vehicles, drivers or motor carriers were 

involved in interstate or intrastate commerce. 

The [Agency] has consistently taken the 

position that this was the intent of MCSAP 

as originally enacted in the STAA of 1982, 

and this provision confirms that position. 

The Agency has issued tolerance 

guidelines that allow certain limited 

departures from the Federal standards 

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59128 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

by intrastate CMV regulations, and those 

guidelines were first codified, along 

with procedures for periodic State and 

Agency review of compatibility, in the 

1992 MCSAP final rule. (See 57 FR 

40951–52, 40957–58 (former 49 CFR 

350.11) and 40961–62 (49 CFR part 350, 

former App. C).) In addition, the process 

for determining compatibility of State 

laws with Federal regulations and 

standards under the authority of 49 

U.S.C. 31141 was combined with the 

process for reviewing State funding 

under MCSAP (57 FR 40952). 

More recently, FMCSA reiterated that: 

[T]he congressional intent and purpose of 

the MCSAP [is] to ensure uniformity of 

regulations and enforcement among the 

States. Since the inception of the program, 

the agency has required each State to enforce 

uniform motor carrier safety and hazardous 

materials regulations for both interstate and 

intrastate motor carriers and drivers. Safety 

standards in one State must be compatible 

with the requirements in another State in 

order to foster a uniform national safety 

environment. 

(Motor Carrier Safety Assistance 

Program, 65 FR 15092, 15098 (Mar. 21, 

2000)). The MCSAP rules adopted in 

2000 recodified and strengthened the 

tolerance guidelines, which are now 

found at 49 CFR 350.339–350.345. 

With regard to CVSA’s comments on 

the preemption of State safety regulation 

of intrastate CMV drivers, FMCSA did 

not propose in this rulemaking any 

departure from the compatibility 

requirements for intrastate CMVs and 

drivers that are an essential element of 

MCSAP. As explained in the NPRM, the 

States receiving MCSAP grants will be 

required, as a condition of receiving the 

grants, to adopt compatible regulations 

with regard to texting by CMV drivers 

in accordance with the requirements of 

49 CFR part 350. At the same time, 

those States have the ability, at their 

discretion, to utilize the limited 

variances from MCSAP compatibility 

allowed by 49 CFR 350.341, which 

FMCSA is not modifying in this 

rulemaking. Section 350.341 sets the 

boundaries for the allowable variances 

from the uniform Federal standard 

governing texting by CMV drivers for 

intrastate motor carrier operations in the 

States receiving MCSAP grants. 

State Adoption 

The National Conference of State 

Legislators (NCSL) requested that DOT 

provide States with more than 3 years 

to adopt the necessary laws and 

regulations. NCSL recommended that 

these new requirements be ‘‘excluded 

from the sanctions and withholds that 

exist in the underlying statute and 

regulations.’’ 

FMCSA Response: 

The Agency does not believe the 

request is appropriate given the safety 

risks of texting while driving. Three 

years is more than enough time to adopt 

this regulation, even if a State 

legislature meets every other year to 

pass new legislation. The Agency has 

consistently allowed a maximum of 3 

years for adoption of MCSAP 

compatible regulations (49 CFR 

350.331(d)). With regard to CDL 

regulations, FMCSA is only adding a 

new offense to an existing category of 

‘‘Serious Traffic Violations.’’ No new 

penalties have to be created by State 

legislatures; they already exist in State 

statutes and laws for existing serious 

traffic violations set forth in § 383.51. 

Furthermore, States have consistently 

demonstrated their ability to implement 

more complex and expansive 

regulations in the past in fewer than 3 

years. 

Enforcement 

Several commenters noted that 

enforcement will be difficult and 

highlighted the current lack of 

enforcement of existing laws. Some 

commenters were concerned that 

enforcement may take place only after 

there is a crash. To the extent possible, 

CVSA felt that regulations should not be 

prescriptive, but rather performancebased, and efforts should be made to use 

existing authorities for enforcement. 

Several commenters worried about the 

mechanics of enforcement. 

In addition, OOIDA commented that 

an enforcement plan is necessary to 

ensure that enforcement of a restriction 

on texting conforms to the requirements 

of the Fourth Amendment’s provisions 

governing searches and seizures. OOIDA 

is most concerned about explaining 

what, if any, access enforcement 

personnel would have to electronic 

devices present in a CMV and to the 

information stored on the devices. 

FMCSA Response: 

FMCSA does not believe that 

questions about specific enforcement 

procedures are a basis for not taking 

action to restrict texting while driving. 

Enforcement of this rule will involve a 

period of familiarization for both 

Federal and State enforcement agencies. 

If FMCSA were considering a rule 

allowing texting under certain 

circumstances, performance-based 

standards might be suitable; they are not 

a viable option for this rule, which 

requires specific restriction concerning 

an activity that compromises safety. 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 

lead distracted drivers to put down their 

cell phones and focus on the road. 

During one week of the pilot program in 

Hartford, police cited more that 2,000 

drivers for talking on mobile phones 

and 200 more for texting while driving. 

With regard to the Fourth Amendment 

issues raised by OOIDA, enforcement 

activities related to the implementation 

of the final rule that involve acquisition 

of evidence will be governed by the 

principles established in judicial 

precedents interpreting and applying 

the Fourth Amendment and related 

statutory provisions, such as the 

Electronic Communications Privacy Act 

of 1986, Public Law No. 99–508, 100 

Stat. 1848 (1986). It is FMCSA’s view 

that these principles should address the 

concerns raised by OOIDA. 

Penalties 

Several commenters said that the 

proposed penalties are not harsh 

enough. AIA stated that, since research 

shows that texting while driving can 

have an effect that is the same as or 

worse than severely intoxicated driving, 

the CDL penalties for texting should be 

identical to those applicable to 

intoxicated driving. On the other hand, 

TTD and ATU stated the proposal 

correctly sanctions CDL holders for 

texting while driving only when they 

are ‘‘operating a CMV’’ and not ‘‘while 

operating a vehicle for which a CDL is 

not required.’’ 

FMCSA Response: 

FMCSA, to a degree, is constrained by 

the applicable statutes in establishing 

new CDL qualifications. Under 49 

U.S.C. 31310(e), a CDL driver may only 

be disqualified for committing multiple 

violations of ‘‘serious traffic violations 

involving a commercial motor vehicle 

operated by the’’ CDL driver. This has 

always been interpreted as requiring 

that the offense be committed while 

operating a CMV (see 49 CFR 383.51, 

Table 2). This is the statutory authority 

that FMCSA must rely on to add texting 

while operating a CMV to the list of 

serious traffic violations to provide the 

basis for a possible disqualification of a 

CDL driver. On the other hand, a 

different statutory provision, 49 U.S.C. 

31310(g), requires longer 

disqualifications of a CDL driver with 

multiple convictions involving a motor 

vehicle (other than a CMV) of either: (1) 

A serious offense ‘‘that has resulted in 

the revocation, cancellation, or 

suspension of the individual’s license’’; 

or (2) a ‘‘drug or alcohol related offense’’ 

(Cf. 49 CFR 383.51, Table 2). 

FMCSA is unaware of any State law 

that provides for the revocation, 

cancellation, or suspension of a driver’s 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59129 

license when the driver is convicted of 

texting while driving a non-CMV. 

Therefore, the longer disqualification 

period provided in Section 31310(g) is 

not available for application to texting 

in violation of State or local traffic laws. 

Section 31310(e) does allow FMCSA 

to specify that the period of 

disqualification should be ‘‘at least 60 

days’’ for obtaining two convictions 

within a 3-year period and ‘‘at least 120 

days’’ for obtaining three or more 

convictions within a 3-year period. 

However, the Agency decided that the 

penalties for texting should be similar to 

the disqualification periods for other 

traffic violations already in place for 

CMV drivers. The Agency considered 

the severity of the penalties in the 

development of the NPRM. FMCSA 

based its decision on the level of 

severity of the current penalty for other 

serious violations such as reckless 

driving and speeding, as provided by 49 

U.S.C. 31310(e) and 49 CFR 383.51(c). 

Use of Federal Civil Penalties and State 

Fines 

Some commenters, including the 

League of American Bicyclists, 

suggested that any fines collected be 

routed toward awareness programs, 

marketing campaigns, street safety, and 

targeted traffic enforcement. Others 

suggested providing the funds to 

infrastructure programs for other modes 

of transportation such as walking, 

cycling, and public transportation. 

FMCSA Response: 

While the Agency agrees with the 

view that bicyclists and pedestrians are 

vulnerable to distracted driving 

behaviors, the Agency does not have 

discretion in the use of Federal civil 

penalties. The Agency cannot control 

the use of funds collected by local 

enforcement agencies through fines 

received from traffic violations. Its 

authority to direct the use of fines and 

penalties collected by State and local 

enforcement agencies receiving MCSAP 

grants is limited to ensuring that the 

States provide ‘‘satisfactory assurances 

the [State] has or will have the legal 

authority * * * necessary to enforce’’ 

CMV safety regulations (49 U.S.C. 

31102(b)(1)(C)). FMCSA is required by 

statute to deposit all civil penalties it 

collects in the Highway Trust Fund (49 

U.S.C. 521(b)(10)). 

Data and Research on Texting by CMV 

Drivers 

While commenters generally agreed 

that existing research shows that texting 

may seriously compromise safety, some 

commenters found the existing research 

to be inadequate. Though ATA 

supported the NPRM, it commented that 

regulations should be based solely on 

research and facts. CVSA believed that 

there needs to be more research on the 

issue of distracted driving, especially as 

it relates to crashes and the different 

types of distractions—both technologyand non-technology-related. TWU noted 

that the basis for this rule has been 

overall statistics, but not specific data 

on texting by CMV drivers. 

FMCSA Response: 

In response to the NPRM, the Agency 

did not receive any additional research 

data on texting from the public. The 

Agency reviewed existing research and 

other data and concluded that texting 

while driving is a dangerous activity. 

FMCSA has data on texting by CMV 

drivers, included in the VTTI study that 

FMCSA published in 2009, ‘‘Driver 

Distraction in Commercial Vehicle 

Operations.’’ FMCSA finds that the 

results from that study provide 

sufficient data to justify a prohibition 

against texting. The data demonstrate 

safety-critical events that occurred 

while texting by CMV drivers. 

There is no basis for deferring a ban 

against texting until additional research 

is completed. If the industry believes 

texting should be allowed under certain 

circumstances, the Agency welcomes 

the opportunity to engage in an open 

forum to identify those circumstances 

and the research which indicates that 

safety would not be compromised by the 

visual, cognitive, and manual 

distraction associated with texting. 

FMCSA notes that the VTTI study was 

peer reviewed. The study data 

highlighted the need for action rather 

than the need for additional research. 

Because limited CMV-specific data is 

available, the rule is based in part, but 

not entirely, on research studies of all 

driver types, as described extensively in 

both the NPRM and previously in this 

final rule. FMCSA supports further 

research that examines distracted 

driving by CMV drivers and DOT 

continues to conduct research on 

distracted driving. 

Outreach 

FMCSA received multiple comments 

on the necessity of public education, 

outreach, and awareness campaigns. 

CVSA commented that safety efforts on 

distracted driving need to include 

enforcement, engineering, and 

education initiatives. CVSA stated that 

DOT and the appropriate modal 

administrations, as well as Transport 

Canada, will need to make adequate 

resources available to the States and 

other jurisdictions for enforcement and 

education activities. NSC urged FMCSA 

to support the rule’s effectiveness with 

high-visibility enforcement campaigns, 

proven to reduce unsafe driver 

behaviors and boost compliance, in 

order to raise awareness, a necessary 

step with new rules and laws. Several 

commenters suggested that the Agency 

mandate certain training curricula and 

company policies in lieu of a 

prohibition. 

FMCSA Response: 

The Agency agrees that enforcement 

and outreach efforts are essential to 

increase public awareness. DOT 

campaigns, such as those addressing 

seat belt use and drunk driving, have 

proven to reduce injuries and fatalities. 

DOT already has in place campaigns to 

educate all vehicle drivers on distracted 

driving. Platforms for sharing 

information include the Web site 

http://www.Distraction.gov, as well as 

outreach on radio and television, which 

have proven to reduce unsafe driver 

behaviors and boost compliance 

awareness. 

For more information on research, 

outreach, and education, the reader may 

reference the National Highway Traffic 

Safety Administration (NHTSA) Driver 

Distraction Program. This program is a 

plan to communicate NHTSA’s 

priorities to the public with regard to 

driver distraction safety challenges, 

focusing on the long-term goal of 

eliminating crashes that are attributable 

to distraction. The complete overview 

can be found at http:// 

www.distraction.gov/files/dot/ 

6835_DriverDistractionPlan_4- 

14_v6_tag.pdf. The Secretary considers 

preventing distracted driving a priority 

for the Department and has put $50 

million into his Fiscal Year 2011 Budget 

for education, awareness, and outreach. 

Effect of a Texting Ban on Small 

Businesses 

OOIDA stated that FMCSA did not 

identify nor analyze the effect of the 

proposed rule on small businesses 

under the Regulatory Flexibility Act. 

FMCSA Response: 

As required by the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.) the 

Agency conducted an economic analysis 

of the impact of this rule on small 

entities and certified 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 rule 

(See the Final Regulatory Evaluation in 

the docket for this rulemaking). 

Non-CMV Drivers 

Many commenters, including unions, 

trade associations and bicyclists 

suggested that this texting prohibition 

be applied to all vehicle drivers, 

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59130 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

including passenger car drivers, 

motorcyclists, and bicyclists. 

FMCSA Response: 

While FMCSA agrees that no vehicle 

driver should text while driving, 

FMCSA is limited by its statutory 

authority in its ability to regulate 

distracted driving. The Agency’s direct 

authority is limited to drivers of CMVs 

in interstate commerce (49 U.S.C. 

31136(a)). The Agency cannot address 

any aspects of distracted driving by nonCMV drivers, motorcyclists, pedestrians, 

or bicyclists. 

Limiting the Use of Cell Phones and 

Other Interactive Devices in CMVs 

Approximately 50 commenters 

requested a complete ban on cell phones 

while driving CMVs. Many commenters 

believed that other electronic devices 

should be limited in the current rule or 

recommended such a course for future 

rulemaking. There was also concern that 

the proposed rule might not go far 

enough in addressing broader issues 

related to distracted driving. While 

NTSB acknowledged that FMCSA views 

the prohibition of texting as a first step 

and plans to proceed with additional 

rulemaking on this issue in the near 

future, NTSB wanted to ensure that the 

larger issue of cell phone use by drivers 

of CMVs is adequately addressed. 

A number of comments addressed 

other electronic devices generally found 

in CMVs, such as citizens band radios, 

GPS devices, and laptop computers, and 

stated that they should be prohibited by 

FMCSA. TTD noted that FMCSA plans 

to address the use of other electronic 

devices in separate rulemaking 

proceedings, although they had 

concerns regarding motor vehicle 

operators who, they say, ‘‘are often 

required to be dispatched by citizens 

band radio, global position devices, and 

other electronic technologies.’’ 

FMCSA Response: 

FMCSA acknowledges there are safety 

concerns about the level of distraction 

associated with cell phone use. Also, it 

is the subject of both an NTSB (H–06– 

27) and a MCSAC recommendation. The 

use of cell phones and other electronic 

devices by CMV drivers for functions 

other than texting, however, is outside 

the scope of consideration in this 

rulemaking. In order to address 

expeditiously the dangers of texting 

while driving and prevent future 

crashes, injuries, and fatalities, the 

Agency chose to first focus on texting, 

as an especially risky behavior that can 

cause physical, visual, and cognitive 

distraction. FMCSA will evaluate other 

aspects of distracted driving and 

consider future actions. 

Disabling Cell Phones 

Many commenters suggested using 

technology to limit a driver’s ability to 

operate a mobile telephone when 

driving by having the phone 

automatically disabled in a moving 

vehicle. CVSA stated that electronic 

devices, whether they are built into the 

dash or nomadic devices, need to have 

an ‘‘in-motion’’ mode to prevent their 

use (unless in emergency situations) 

during vehicle movement. CeRI 

commenters suggested requiring all cell 

phones to be programmed to shut down 

texting, e-mail, and internet functions 

whenever the phone travels faster than 

5 or 10 miles per hour (mph) and stated 

that manufacturers should be required 

to add such functionality to all cell 

phones. 

FMCSA Response: 

Requiring that such capabilities be 

installed is beyond the scope of this 

rulemaking. However, carriers are free 

to explore and implement such 

capabilities as they see fit. 

IV. Discussion of Rule 

The general structure of this final rule 

follows the outline contained in the 

NPRM (75 FR 16399). Any changes from 

the NPRM are described below. 

Section-by-Section Analysis 

Federal Prohibition Against Texting by 

Interstate CMV Drivers 

Section 390.3 

The Agency determined that it has the 

authority to modify several regulatory 

exemptions in the 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(f)(1) and (6)). This action 

is necessary for public safety regarding 

school bus transportation by interstate 

motor carriers. In addition, the Agency 

determined that the rule should apply to 

the operation by drivers of smallpassenger carrying vehicles (designed to 

transport 9–15 passengers) that are not 

receiving direct compensation that are 

otherwise exempt from most of the 

FMCSRs under 49 CFR 390.3(f)(6). 

Section 390.5 

The Agency adds new definitions for 

the terms ‘‘electronic device’’ and 

‘‘texting,’’ for general application. The 

definition of ‘‘driving’’ is incorporated 

into the prohibition of texting while 

driving a CMV in new § 392.80, in order 

to restrict the use of the term to texting 

activities and to avoid limiting the 

scope of the term as used in other 

provisions of the FMCSRs. 

The Agency did not incorporate 

explanatory adjectives such as 

‘‘handheld,’’ ‘‘portable,’’ and ‘‘personal’’ 

that had been included in other 

documents because the Agency wanted 

to focus on the behavior—not the 

device. After consideration of the 

comments, the texting definition 

clarifies that any non-texting functions, 

which include functions on dispatching 

devices, fleet management systems, 

smart phones, and similar ‘‘multifunction’’ devices (e.g., Global 

Positioning System, hours of service 

tracking capabilities, and music 

playing), are not prohibited by this 

rulemaking. 

Section 391.2 

FMCSA amends 49 CFR 391.2, which 

provides certain exceptions to the 

requirements of part 391 for custom 

farm operations, apiarian industries, 

and specific farm vehicle drivers, to 

enable the Agency to make violations of 

the Federal texting prohibition a 

disqualifying offense for such drivers. 

While the explicit Federal prohibition 

against texting applies directly to these 

drivers, the disqualification provision 

would not apply without this 

amendment to the current exception 

under 49 CFR 391.2. 

Section 391.15 

The Agency adds a new paragraph (e) 

to this section to provide for the 

disqualification of any driver convicted 

of two or more violations of the new 

prohibition set forth in § 392.80 from 

operating a CMV in interstate 

commerce. The change mirrors the 

corresponding new provisions 

governing the disqualification of CDL 

drivers in § 383.51(c). The required 

number of convictions to cause a 

disqualification and the period of 

disqualification are 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 

prohibition are subject to civil penalties 

imposed on such drivers, in an amount 

up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 

CFR 386.81 and App. B, ¶ A(4)). 

Section 392.80 

In this section the Agency prohibits 

texting while driving a CMV, as defined 

in 49 CFR 390.5. In addition, the first 

and each subsequent violation of such a 

prohibition are subject to civil penalties 

imposed on such drivers, in an amount 

up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 

CFR 386.81 and App. B, ¶ A(4)). 

Furthermore, this rule states that motor 

carriers must not allow nor require 

drivers to text while driving. Employers 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59131 

may also 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 

Appendix B, paragraphs (a)(3) and (4)). 

FMCSA also includes a provision in this 

section to apply this new prohibition to 

‘‘school bus operations notwithstanding 

the general exception in 49 CFR 

390.3(f)(1).’’ Therefore, school bus 

drivers who are employed by nongovernment entities and who transport 

school children and/or school personnel 

between home and school in interstate 

commerce are subject to the prohibition. 

FMCSA determined this rule is 

necessary for public safety regarding 

school bus transportation by interstate 

motor carriers. A definition of driving is 

included in the rule. In addition, the 

Agency applies the rule to the operation 

by drivers of small-passenger carrying 

vehicles (designed to transport 9–15 

passengers) that are not receiving direct 

compensation that are otherwise exempt 

from most of the FMCSRs under 49 CFR 

390.3(f)(6). 

The rule provides for a limited 

exception to the texting while driving 

prohibition to allow CMV drivers to text 

if necessary to communicate with law 

enforcement officials or other 

emergency services. 

Federal Disqualification Standard for 

CDL Drivers 

Section 383.5 

FMCSA adds new definitions for the 

terms ‘‘electronic device’’ and ‘‘texting’’ 

for application in part 383. The Agency 

adds a broad definition of electronic 

device in order to cover the multitude 

of devices that allow users to enter and 

read text messages. However, the 

Agency is not prohibiting the use of 

such devices by CMV drivers for 

purposes other than texting. The 

definition of texting identifies the type 

of activity that is covered by this rule. 

Section 383.51 

In Table 2, FMCSA adds a new 

serious traffic violation that will result 

in a CDL driver being disqualified. This 

serious traffic violation is a conviction 

for violating a State or local law or 

ordinance prohibiting texting while 

driving a CMV. FMCSA adds a 

description of what is considered 

‘‘driving’’ for the purpose of this 

disqualification. FMCSA notes that the 

conviction must involve ‘‘texting’’ while 

operating a CMV and excludes 

convictions for texting by a CDL driver 

while operating a vehicle for which a 

CDL is not required. The Agency’s 

decision is consistent with the 

provisions of 49 U.S.C. 31310(e), which 

indicates the serious traffic violation 

must occur while the driver is operating 

a CMV that requires a CDL; the 

operative provisions in the revised table 

limit the types of violations that could 

result in a disqualification accordingly. 

Every State that issues CDLs is 

required to impose this disqualification 

on a driver required to have a CDL 

issued by that State whenever that CDL 

driver is convicted of the necessary 

number of violations (for 60 days for the 

second offense within 3 years and for 

120 days for 3 or more offenses within 

3 years) while operating in States where 

such conduct is prohibited. This is the 

case even if the State issuing the 

disqualification does not have its own 

law on motor vehicle traffic control 

prohibiting texting while operating a 

CMV. (See 49 U.S.C. 31310(e) and 

31311(a)(15), and 49 CFR 384.218 and 

384.219.) 

Section 384.301 

New paragraph (e) of § 384.301 

requires all States that issue CDLs to 

implement the new provisions in 

§ 383.51(c) that relate to disqualifying 

CDL drivers for committing the new 

serious traffic violation of texting while 

driving a CMV as soon as practicable, 

but not later than 3 years after the 

effective date of this regulation. 

State Compatibility 

Motor Carrier Safety Assistance Program 

(MCSAP) 

States that receive MCSAP grant 

funds are required, as a condition of 

receiving the grants, to adopt 

regulations on texting that are 

compatible with these final regulations 

(49 U.S.C. 31102(a) and 49 CFR 

350.201(a)). States under MCSAP will 

have to adopt regulations compatible 

with the prohibition on texting (in 

§ 392.80) and the related 

disqualification (in § 391.15(e)) 

applicable to both interstate and 

intrastate transportation as soon as 

practicable, but not later than 3 years 

after the effective date of this regulation 

(49 CFR 350.331(d)). If States do not 

adopt compatible regulations 

prohibiting texting while driving a CMV 

and related disqualifications, they may 

not receive full MCSAP grant funding. 

Because States perform the 

overwhelming majority of commercial 

vehicle roadside inspections and 

perform all traffic stops, enforcement of 

the final rule would be carried out 

primarily by the States. The requirement 

for States to adopt and enforce 

compatible rules does not, in and of 

itself, establish enforcement priorities 

for States. Each year, States submit to 

FMCSA a Commercial Vehicle Safety 

Plan (CVSP) in which the States set 

safety performance goals and priorities. 

Therefore, FMCSA assumes that the 

adoption of compatible State rules 

would not necessarily result in 

increased enforcement costs. The States 

would include enforcement of a texting 

ban in their CVSPs as warranted by their 

analysis of truck and bus crash data, but 

they would not be required to prioritize 

enforcement based solely on the 

issuance of this rule. States that 

currently have texting prohibitions may 

not incur much in costs, whereas states 

that do not may have to allocate new 

resources and undertake new expenses. 

FMCSA did not quantify additional 

costs that these states might bear as a 

result of this rule. Participating States 

may use MCSAP grant money for 

enforcement of this rule. 

CDL Program 

States that issue CDLs are required to 

adopt and implement the CDL 

disqualification provisions that require 

disqualification for two or more 

convictions of violating a State or local 

traffic law or ordinance prohibiting 

texting while driving a CMV. States 

should be in compliance as soon as 

practicable, but not later than 3 years 

after the effective date of these 

regulations. If they do not comply, they 

may be subject to the loss of up to 5 

percent in the first year of substantial 

non-compliance and up to 10 percent in 

subsequent years of certain Federal-aid 

highway amounts apportioned to the 

State (49 U.S.C. 31311(a) and 31314). 

V. Regulatory Analyses 

FMCSA amends the FMCSRs to 

restrict texting, including texting while 

using dispatching devices and fleet 

management systems, by certain drivers 

while operating CMVs in interstate 

commerce. The Agency also amends the 

FMCSRs to impose sanctions, including 

civil penalties and disqualification, on 

such drivers who do not comply with 

this final rule. The goal of the regulatory 

revision is to prevent or reduce the 

prevalence of truck and bus crashes, 

fatalities, and injuries on our Nation’s 

highways due to texting while driving. 

In addition, the revisions will reduce 

the financial and environmental 

burdens associated with these crashes, 

and promote the efficient movement of 

traffic and commerce on interstate 

highways. 

Recent studies, including one 

commissioned by FMCSA, show that 

texting is among the riskiest behaviors 

of the distracting activities that are 

undertaken by CMV drivers. Because 

texting while driving is a fairly recent 

phenomenon, empirical research on its 

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59132 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

impact on safety is limited. FMCSA 

carefully evaluated all available 

national-level crash data and found the 

data do show that distracted driving 

often results in crashes. While these 

data do not identify the number of 

fatalities or crashes attributable to 

texting, there are numerous studies on 

driver distraction in general. FMCSA 

analyzed those studies and found that 

many of their findings can be applied as 

a supplementary explanation to a 

texting prohibition. With regard to the 

current data on texting, the regulatory 

analysis focuses on one particular 

study—‘‘Driver Distraction in 

Commercial Vehicle Operations’’ (VTTI 

Study)—which, though limited in scope 

and application, does shed light on the 

potential harm of texting while driving 

CMVs. 

Currently, FMCSA does not have 

sufficient data that show an explicit 

empirical link between texting and CMV 

crashes. Therefore, the Agency 

exercised its professional judgment 

consistent with Office of Management 

and Budget Circular A–4 (‘‘Regulatory 

Analysis’’) and conducted a threshold 

analysis. A threshold or break-even 

analysis is called for when it is 

impossible, or difficult, to express in 

monetary units all of the important 

benefits and costs of a rule. The most 

efficient alternative will not necessarily 

be the one with the largest quantified 

and monetized net-benefit estimate. In 

such cases, the Agency is required to 

make a determination of how important 

the non-quantified benefits or costs may 

be in the context of the overall analysis. 

The threshold analysis approach 

therefore answers the question: How 

small does the value of the nonquantified benefits (safety benefits in 

terms of crash prevention) have to be in 

order for the rule to yield zero net 

benefits (i.e., break even)? 

This regulatory evaluation 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; (c) 

increased crash risk due to CMVs that 

are parked on the side of the roadway 

and exiting and entering the travel lanes 

of the roadway; and (d) costs to the 

States. 

The Agency estimates that this rule 

will cost $3.8 million annually. Current 

guidance from the Office of the 

Secretary of Transportation (OST) 

places the value of a statistical life at 

$6.0 million. Consequently, the texting 

restriction would have to eliminate at 

most one fatality every year in order for 

the benefits of this rule to at least equal 

the costs. Given the unchecked 

expansion of texting, FMCSA believes 

the rule will save lives and prevent a 

substantial number of crashes. 

Therefore, the rule is justified based on 

the safety benefits. The table below 

presents a summary of the estimated 

costs of this rule and a threshold 

analysis of the number of fatalities that 

would need to be avoided in order to 

break even. 

SUMMARY OF COSTS AND THRESHOLD

ANALYSIS (FIRST YEAR) 

Lost Carrier Productivity (millions) ... $0.3 

Increased Fuel Consumption (millions) .............................................. $1.1 

Parking, Entering, and Exiting Roadway Crashes (millions) .................. $0.2 

Costs to the States ........................... *$2.2 

Total Costs ................................ $3.8 

Benefit of Eliminating One Fatality 

(millions) ........................................ $6.0 

Break-even Number of Lives Saved <1 

* One-time cost. 

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. FMCSA is 

unaware of the specific future 

technologies that might arise, but we 

continue to research and monitor 

technological changes in the market. 

States are responsible for adopting 

compatible State rules within three 

years of the date of the final rule. 

Because States perform the 

overwhelming majority of commercial 

vehicle roadside inspections and 

perform all traffic stops, enforcement of 

the final rule would be carried out 

primarily by the States. The requirement 

for States to adopt and enforce 

compatible rules does not, in and of 

itself, establish enforcement priorities 

for States. Each year, States submit to 

FMCSA a Commercial Vehicle Safety 

Plan (CVSP) in which the States set 

safety performance goals and priorities. 

Therefore, FMCSA assumes that the 

adoption of compatible State rules 

would not necessarily result in 

increased enforcement costs. The States 

would include enforcement of a texting 

ban in their CVSPs as warranted by their 

analysis of truck and bus crash data, but 

they would not be required to prioritize 

enforcement based solely on the 

issuance of this rule. States that 

currently have texting prohibitions may 

not incur much in costs, whereas states 

that do not may have to allocate new 

resources and undertake new expenses. 

FMCSA did not quantify additional 

costs that these states might bear as a 

result of this rule. Participating States 

may use MCSAP grant money for 

enforcement of this rule. 

FMCSA also conducted a 10-year 

annualized projection of the discounted 

costs and benefits of the rule, in which 

the benefits are simply the value of 

statistical life saved (i.e., $6 million). 

The results, summarized below, show 

that the net benefits, under both a 3% 

discount rate and a 7% discount rate, 

are positive. 

SUMMARY OF ESTIMATED NET BENEFITS

10-Year discounting 3% discount rate 

(millions) 

7% discount rate 

(millions) 

Total Costs ............................................................................................................................... $15.7 $14.0 

Total Benefits* ......................................................................................................................... 52.7 45.0 

Net Benefits ............................................................................................................................. 37.0 31.0 

* $6 million VSL. 

FMCSA also conducted a sensitivity 

analysis (the details of which are 

contained in Appendix A of the 

regulatory evaluation) whereby the 

extent of texting while using a 

dispatching device or fleet management 

system is varied. The results of that 

analysis show an estimated minimum 

total cost of this rule of approximately 

$1.4 million and an estimated maximum 

total cost of approximately $2.0 million. 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59133 

27This number represents 99% of 498,465, the 

current number of interstate motor carriers with 

recent activity (source: MCMIS data 6/17/2010). 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

FMCSA 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. 

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. DOT 

policy also requires an analysis of the 

impact of all regulations on small 

entities, and mandates that agencies 

strive to lessen any adverse effects on 

these businesses. 

FMCSA has conducted an economic 

analysis of the impact of this 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 rule. 

This rulemaking will affect all of the 

approximately 493,480 27 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 passengercarrying vehicle and send or receive a 

text message. The majority of motor 

carriers are small entities. Therefore, 

FMCSA will use the total cost of the 

rule in the first year ($3.8 million) 

applied to the number of small entities 

(493,480) as a worst case evaluation 

which would average $7.70 per carrier. 

In subsequent years, the cost of the rule 

per carrier is estimated to be $3.30. 

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 rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking. If the 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 this 

rule. FMCSA will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of FMCSA. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of FMCSA, call 1–888–REG– 

FAIR (1–888–734–3247). 

Unfunded Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$140.8 million (which is the value of 

$100 million in 2009 after adjusting for 

inflation) or more in any 1 year. Though 

this rule would not result in such 

expenditure, FMCSA discusses the 

effects of this rule elsewhere in this 

preamble. 

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). 

Privacy Impact Assessment 

FMCSA conducted a Privacy 

Threshold Analysis (PTA) for the rule 

on limiting the use of wireless 

communication devices and determined 

that it is not a privacy-sensitive 

rulemaking because the rule will not 

require any collection, maintenance, or 

dissemination of Personally Identifiable 

Information (PII) from or about members 

of the public. 

Executive Order 13132 (Federalism) 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments, 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 rule may have an impact on 

the States. Accordingly, the Agency 

sought advice from the National 

Governors Association (NGA), NCSL, 

and the American Association of Motor 

Vehicle Administrators (AAMVA) on 

the topic of texting by letters dated 

December 18, 2009. (A copy of these 

letters is available in the docket for this 

rulemaking). In addition, FMCSA met 

with representatives from NGA, NCSL, 

and AAMVA on February 3, 2010, to 

discuss FMCSA’s rulemaking initiatives. 

The State interests that met with 

FMCSA did not express any concerns, 

then or later, with the proposed course 

of action, and did not file any 

comments. 

For a full discussion of any 

preemption issues, see section III. 

Discussion of Comments, Preemption of 

State and Local Laws. 

Executive Order 12630 (Taking of 

Private Property) 

This 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 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 rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

would not create an environmental risk 

to health or risk to safety that might 

disproportionately affect children. 

Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

FMCSA analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. FMCSA 

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59134 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

determined that it is not a ‘‘significant 

energy action’’ under that order. Though 

it is a ‘‘significant regulatory action’’ 

under Executive Order 12866, it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (15 U.S.C. 272 

note) directs agencies to use voluntary 

consensus standards in their regulatory 

activities unless the agency provides 

Congress, through OMB, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

The Agency is not aware of any 

technical standards used to address 

texting and therefore did not consider 

any standards. 

National Environmental Policy Act 

The Agency analyzed this rule for the 

purpose of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321 et seq.) and determined under our 

environmental procedures Order 5610.1, 

published March 1, 2004, in the Federal 

Register (69 FR 9680), that this action 

requires an Environmental Assessment 

(EA) to determine if a more extensive 

Environmental Impact Statement (EIS) 

is required. FMCSA finds the impacts to 

the environment do not warrant the 

more extensive EIS, thus FMCSA issues 

a Finding of No Significant Impact 

(FONSI). The findings of the EA reveal 

that there are no significant positive or 

negative impacts on the environment 

expected to result from the rulemaking 

action. There could be minor impacts on 

emissions, hazardous materials spills, 

solid waste, socioeconomics, and public 

health and safety. 

FMCSA has also analyzed this rule 

under section 176(c) of the Clean Air 

Act (CAA), as amended (42 U.S.C. 7401 

et seq.), and implementing regulations 

promulgated by the Environmental 

Protection Agency. Approval of this 

action is exempt from the CAA’s general 

conformity requirement since it would 

not result in any potential increase in 

emissions that is above the general 

conformity rule’s de minimis emission 

threshold levels (40 CFR 93.153(c)(2)). 

Moreover, based on our analysis, it is 

reasonably foreseeable that the rule 

would not significantly increase total 

CMV mileage, nor would it change the 

routing of CMVs, how CMVs operate, or 

the CMV fleet mix of motor carriers. 

This action merely establishes 

requirements to prohibit texting while 

driving for CMV drivers and establishes 

a procedure for disqualification. 

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 amends 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 

following definitions in alphabetical 

order. 

§ 383.5 Definitions. 

* * * * * 

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, 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) 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, citizens band 

radios, music players, etc.) for a purpose 

that is not otherwise prohibited in this 

part. 

* * * * * 

■ 3. Amend § 383.51 by adding a new 

paragraph (c)(9) to Table 2 to read as 

follows: 

§ 383.51 Disqualifications of Drivers. 

* * * * * 

(c) * * * 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59135 

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 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 . . . 

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 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 . . . 

*******

(9) Violating a State or local law 

or ordinance on motor vehicle 

traffic control prohibiting 

texting while driving.2

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

*****

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. 

* * * * * 

PART 384—STATE COMPLIANCE 

WITH COMMERCIAL DRIVER’S 

LICENSE PROGRAM 

■ 4. The authority citation for part 384 

continues to read as follow: 

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

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

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

■ 5. Amend § 384.301 by adding a new 

paragraph (e) to read as follows: 

§ 384.301 Substantial compliance— 

general requirements. 

* * * * * 

(e) A State must come into substantial 

compliance with the requirements of 

subpart B of this part in effect as of 

October 27, 2010 as soon as practical, 

but not later than October 28, 2013. 

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 

paragraph (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(e) and 392.80; 

* * * * * 

(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 

for the texting provisions of §§ 391.15(e) 

and 392.80, and except that motor 

carriers operating such vehicles are 

required to comply with §§ 390.15, 

390.19, and 390.21(a) and (b)(2). 

* * * * * 

■ 8. Amend § 390.5 by adding the 

following definitions in alphabetical 

order. 

§ 390.5 Definitions. 

* * * * * 

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, 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 electronic 

text entry for present or future 

communication. 

(2) Texting does not include: 

(i) Reading, selecting, or entering a 

telephone number, an extension 

number, or voicemail retrieval codes 

and commands into an electronic device 

for the purpose of initiating or receiving 

a phone call or using voice commands 

to initiate or receive a telephone call; 

(ii) 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, citizens band 

radios, music players, etc.) for a purpose 

that is not otherwise prohibited in part 

392. 

* * * * * 

PART 391—QUALIFICATIONS 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) 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) 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. 

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59136 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

(c) Certain farm vehicle drivers. The 

rules in this part except for § 391.15(e) 

do not apply to a farm vehicle driver 

except a farm vehicle driver who drives 

an articulated (combination) 

commercial motor vehicle, as defined in 

§ 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 (e) to read as follows: 

§ 391.15 Disqualification of drivers. 

* * * * * 

(e) Disqualification for violation of 

prohibition of texting while driving a 

commercial motor vehicle— 

(1) General rule. A driver who is 

convicted of violating the prohibition of 

texting in § 392.80(a) of this chapter is 

disqualified for the period of time 

specified in paragraph (e)(2) of this 

section. 

(2) Duration. Disqualification for 

violation of prohibition of texting while 

driving a commercial motor vehicle— 

(i) Second violation. A driver is 

disqualified for 60 days if the driver is 

convicted of two violations of 

§ 392.80(a) of this chapter in separate 

incidents 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 § 392.80(a) of this chapter 

in separate incidents during any 3-year 

period. 

PART 392—DRIVING OF COMMERCIAL 

MOTOR VEHICLES 

■ 12. The authority citation for part 392 

continues to read as follows: 

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

31502; and 49 CFR 1.73. 

■ 13. Amend part 392 by adding a new 

subpart H to read as follows: 

Subpart H—Limiting the Use of 

Electronic Devices 

§ 392.80 Prohibition against texting. 

(a) Prohibition. No driver shall engage 

in texting while driving. 

(b) Motor Carriers. No motor carrier 

shall allow or require its drivers to 

engage in texting while driving. 

(c) Definition. For the purpose of this 

section only, driving means operating a 

commercial motor vehicle, with the 

motor running, including while 

temporarily stationary because of traffic, 

a traffic control device, or other 

momentary delays. Driving does not 

include operating a commercial motor 

vehicle with or without the motor 

running when the driver moved the 

vehicle to the side of, or off, a highway, 

as defined in 49 CFR 390.5, and halted 

in a location where the vehicle can 

safely remain stationary. 

(d) 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) are not applicable to 

this section. 

(2) Emergency Use. Texting while 

driving is permissible by drivers of a 

commercial motor vehicle when 

necessary to communicate with law 

enforcement officials or other 

emergency services. 

Issued on: September 17, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–23861 Filed 9–24–10; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 080228336–0435–02] 

RIN 0648–AW09 

Implementation of Regional Fishery 

Management Organizations’ Measures 

Pertaining to Vessels That Engaged in 

Illegal, Unreported, or Unregulated 

Fishing Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS publishes this final 

rule to implement international 

conservation and management measures 

that pertain to vessels that have been 

identified by any one of several regional 

fishery management organizations 

(RFMOs), identified below, as having 

engaged in illegal, unreported, and 

unregulated (IUU) fishing activities and 

added to IUU vessel lists. The United 

States is a member of, and obligated to 

implement measures adopted by, the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT), 

Commission for the Conservation of 

Antarctic Marine Living Resources 

(CCAMLR), Northwest Atlantic 

Fisheries Organization (NAFO), Western 

and Central Pacific Fisheries 

Commission (WCPFC), Inter-American 

Tropical Tuna Commission (IATTC), 

and the Agreement on the International 

Dolphin Conservation Program (AIDCP). 

This rule provides the NOAA Assistant 

Administrator for Fisheries (Assistant 

Administrator) with authority to restrict 

entry into any port or place of the 

United States of, and access to port 

services by, foreign vessels on the IUU 

vessel lists of the aforementioned 

RFMOs. It also gives the Assistant 

Administrator authority to prohibit such 

vessels from engaging in commercial 

transactions, including, but not limited 

to, landing and transshipping products. 

Furthermore, the rule prohibits persons 

and business entities subject to U.S. 

jurisdiction from providing certain 

services to, or engaging in commercial 

transactions with, such vessels. 

DATES: Effective October 27, 2010. 

ADDRESSES: Copies of supporting 

documents that were prepared for this 

final rule, such as the proposed rule, are 

available via the Federal e-Rulemaking 

portal, at http://www.regulations.gov. 

These documents are also available from 

the Trade and Marine Stewardship 

Division, Office of International Affairs, 

NMFS, 1315 East-West Highway, Silver 

Spring, MD 20910. 

FOR FURTHER INFORMATION CONTACT: Mi 

Ae Kim, Trade and Marine Stewardship 

Division, Office of International Affairs, 

NMFS ((phone) 301–713–9090, (fax) 

301–713–9106, or (e-mail) 

mi.ae.kim@noaa.gov). 

SUPPLEMENTARY INFORMATION: 

Background 

On January 11, 2010, NMFS 

published a proposed rule in the 

Federal Register (75 FR 1324) to address 

vessels that are on the IUU vessel lists 

maintained by RFMOs to which the 

United States is a party. As mentioned 

in the proposed rule, the effective 

management of certain marine resources 

is dependent on compliance with 

conservation and management measures 

of RFMOs. The vessels that are included 

on the IUU vessels lists were identified 

by RFMOs as having engaged in 

activities that undermine the 

effectiveness of conservation and 

management measures. Examples of 

such IUU fishing activity include: 

• Fishing in an RFMO’s management 

(or convention) area without 

authorization; 

• Failing to record or declare their 

catches, or making false reports; 

• Using prohibited fishing gear in 

contravention of conservation measures; 

or 

• Transshipping with, or 

participating in joint operations with, 

re-supplying, or re-fueling vessels 

included in IUU vessel lists. 

The proposed rule was open for 

public comment through February 25, 

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