1 May 2011
Restricting the Use of Cellular Phones by by HazMat Drivers
[Federal Register: April 29, 2011 (Volume 76, Number 83)]
[Proposed Rules]
[Page 23923-23929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap11-18]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 177
[Docket No. PHMSA-2010-0227 (HM-256A)]
RIN 2137-AE65
Hazardous Materials: Restricting the Use of Cellular Phones by
Drivers of Commercial Motor Vehicles in Intrastate Commerce
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA) proposes to restrict the use of hand-held mobile telephones,
including hand-held cell phones, by drivers during the operation of a
motor vehicle containing a quantity of hazardous materials requiring
placarding under Part 172 of the 49 CFR or any quantity of a select
agent or toxin listed in 42 CFR Part 73. Additionally, in accordance
with requirements proposed by the Federal Motor Carrier Safety
Administration (FMCSA), motor carriers are prohibited from requiring or
allowing drivers of covered motor vehicles to engage in the use of
hand-held mobile telephones while driving. This rulemaking would
improve health and safety on the Nation's highways by reducing the
prevalence of distracted driving-related crashes, fatalities, and
injuries involving drivers of commercial motor vehicles.
DATES: Comments must be received by June 28, 2011.
ADDRESSES: You may submit comments identified by the docket number
PHMSA-2010-0227 by any of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: (202) 493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations; Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this rule. Note that all comments received will be
posted without change, including any personal information provided.
Please see the discussion of the Privacy Act below.
Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov at any time or
DOT's Docket Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Delmer Billings, Office of Hazardous
Materials Safety, (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
A. US DOT Strategy
The United States Department of Transportation (US DOT) is leading
the effort to end the dangerous practice of distracted driving on our
nation's roadways and in other modes of transportation. Driver
distraction can be defined as the voluntary or involuntary diversion of
attention from the primary driving tasks due to an object, event, or
person that shifts the attention away from the fundamental driving
task. The US DOT has identified three main types of distraction that
occur while operating a motor vehicle:
1. Visual--taking your eyes off of the road;
2. Manual--taking your hands off of the wheel; and
3. Cognitive--taking your mind off of driving.
The US DOT is working across the spectrum with private and public
entities to tackle distracted driving, and will lead by example. The
individual agencies of the US DOT are working together to share
knowledge, promote a
[[Page 23924]]
greater understanding of the issue, and identify additional strategies
to end distracted driving. Additionally, several states have forbidden
the operation of many types of electronic devices, including cellular
phones, while driving any motor vehicle. See US DOT Distracted Driving
Web site, http://www.distraction.gov; see also Insurance Institute for
Highway Safety Web site, http://www.iihs.org/.
B. PHMSA Distracted Driving Safety Advisory Notice and Texting
Restriction
In support of the US DOT strategy to end distracted driving PHMSA
issued ``Safety Advisory Notice: Personal Electronic Device Related
Distractions (Safety Advisory Notice No.10-5)'' on August 3, 2010 (75
FR 45697) to alert the hazardous materials community to the dangers
associated with the use of cellular (mobile) phones and electronic
devices while operating a commercial motor vehicle (CMV; 49 CFR 383.5).
On February 28, 2011 PHMSA issued a final rule (HM-256; PHMSA-2010-
0221 (76 FR 10771)) to prohibit texting on electronic devices by
drivers during the operation of a motor vehicle containing a quantity
of hazardous materials requiring placarding or any quantity of a select
agent or toxin listed in the Department of Health and Human Services
``Select Agents and Toxins'' regulations. The final rule stresses the
heightened risk of transportation incidents involving hazardous
materials when CMV drivers are distracted by electronic devices.
Accordingly, both the February 28, 2011 final rule and this notice of
proposed rulemaking (NPRM) urge motor carriers that transport hazardous
materials to institute policies and provide awareness training to
discourage the use of mobile telephones and electronic devices by CMV
drivers.
C. FMCSA Rulemaking and Definitions
1. FMCSA Rulemaking
On December 21, 2010 (Docket FMCSA-2010-0096 (75 FR 80014)) FMCSA
published an NPRM proposed to restrict the use of hand-held mobile
telephone use, including cell phone use, by CMV drivers as a necessary
component of an overall strategy to reduce the number of crashes caused
by distracted driving. The FMCSA NPRM focuses on all interstate CMV
drivers, including those drivers of CMVs that do not require a CDL. In
general, the FMCSA proposal would cover all CMV drivers subject to
FMCSA's safe driving rules under 49 CFR part 392.
Additionally, on September 27, 2010, the Federal Motor Carrier
Safety Administration (FMCSA) published a final rule limiting the use
of wireless communication devices by CMV drivers (Docket FMCSA-2009-
0370 (75 FR 59118)). The FMCSA final rule prohibits texting by CMV
drivers operating in interstate commerce and imposes sanctions for
drivers that fail to comply. In the final rule FMCSA cites numerous
studies evaluating the dangers of various forms of distracted driving.
2. Definitions
In existing Federal Motor Carrier Safety Regulations (FMCSRs; 49
CFR Parts 350-399) FMCSA defines a ``CMV'' in Sec. 383.5 of the 49 CFR
as follows:
Commercial motor vehicle means a motor vehicle or combination of
motor vehicles used in commerce to transport passengers or property if
the motor vehicle--
(a) Has a gross combination weight rating of 11,794 kilograms or
more (26,001 pounds or more) inclusive of a towed unit(s) with a gross
vehicle weight rating of more than 4,536 kilograms (10,000 pounds);
(b) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 pounds or more);
(c) Is designed to transport 16 or more passengers, including the
driver; or
(d) Is of any size and is used in the transportation of hazardous
materials as defined in this section.
In its December 21, 2010 NPRM addressing the use of hand-held
mobile telephones by CMV drivers, FMCSA proposed to define the terms
``mobile telephone'' and ``using a hand-held mobile telephone'' in
Sec. 390.5 as follows:
Mobile telephone means a mobile communication device that falls
under or uses any commercial mobile radio service, as defined in
regulations of the Federal Communications Commission, 47 CFR 20.3. It
does not include twoway or Citizens Band Radio services.
Using a hand-held mobile telephone means using at least one hand to
hold a mobile telephone to conduct a voice communication or to reach
for or dial a mobile telephone.
In addition, in its NPRM FMCSA proposes to define the term
``driving'' in Sec. 392.82 as follows:
Driving means operating a commercial motor vehicle, with the motor
running, including while temporarily stationary because of traffic, a
traffic control device, or other momentary delays. Driving does not
include operating a commercial motor vehicle, with or without the motor
running, when the driver has moved the vehicle to the side of, or off,
a highway and has halted in a location where the vehicle can safely
remain stationary.
D. Studies, Data, and Analysis on Driver Distractions
Distracted driving reduces a driver's situational awareness,
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
US DOT has been studying the distracted driving issue with respect to
both behavioral and vehicle safety countermeasures. Researchers and
writers classify distraction into various categories, depending on the
nature of their work. In its NPRM, FMCSA states:
FMCSA is aware of several recent CMV crashes in which the use of
a mobile telephone may have contributed to the crash. In one case,
according to media reports, a truck driver from Arkansas told police
she was talking on her cell phone when she became involved in a
crash that killed two boys on May 9, 2010. In another media report,
on March 26, 2010, a tractor trailer crossed the median strip of
Interstate 65 in central Kentucky and collided with a van
transporting 9 adults, two children, and an infant. All the adults
and the infant in the van and the truck driver were killed. The NTSB
is conducting an investigation into the crash, including attempting
to determine if a mobile telephone was a factor in the crash.
According to media reports, in February 2010, a Montgomery County,
Pennsylvania, school bus driver was allegedly talking on his cell
phone before a deadly crash.\1\
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\1\ Driver To Stand Trial In Fatal School Bus Crash. (April 20,
2010) Philadelphia, PA: KYW-TV. Retrieved from the CBS3 Web site,
July 21, 2010, from: http://cbs3.com/local/
montgomery.county.school.2.1645628.html.
Below we summarize studies, data, and analysis that provide the
foundation for this NPRM.
1. NTSB Safety Recommendation H-06-27
On November 14, 2004, a motor coach crashed into a bridge overpass
on the George Washington Memorial Parkway in Alexandria, Virginia. This
crash was the impetus for a National Transportation Safety Board (NTSB)
investigation and subsequent recommendation (Safety Recommendation H-
06-27) to FMCSA regarding cell phone use by passenger-carrying CMVs.
The NTSB determined that one probable cause of the crash was the use of
a hands-free cell phone, resulting in cognitive distraction; therefore,
the driver did not ``see'' the low bridge warning signs.
In a letter to NTSB dated March 5, 2007, FMCSA agreed to initiate a
study to assess:
The potential safety benefits of restricting cell phone
use by drivers of passenger-carrying CMVs;
[[Page 23925]]
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.
2. FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
Section 4144 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to
establish a Motor Carrier Safety Advisory Committee (MCSAC). The
committee provides advice and recommendations to the FMCSA
Administrator on motor carrier safety programs and regulations and
operates in accordance with the Federal Advisory Committee Act (5
U.S.C. App. 2).
In MCSAC's March 27, 2009, report to FMCSA titled ``Developing a
National Agenda for Motor Carrier Safety,'' MCSAC recommended that
FMCSA adopt new Federal rules concerning distracted driving.\2\ MCSAC
believed that 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 problems are addressed.
Therefore, one of MCSAC's recommendations for the National Agenda for
Motor Carrier Safety was that FMCSA initiate a rulemaking to ban the
use of hand-held and hands-free mobile telephones while driving.
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\2\ Parker, David R., Chair, Motor Carrier Safety Advisory
Committee (March 27, 2009). Letter to Rose A. McMurray, Acting
Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor
Vehicle Safety. Retrieved July 23, 2010, from: http://
mcsac.fmcsa.dot.gov/documents/MCSACTask09-
01FinalReportandLettertoAdministrator090428.pdf.
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3. Driver Distraction in Commercial Vehicle Operations (``the VTTI
Study'')--Olson et al., 2009 \3\
Under contract with FMCSA, the Virginia Tech Transportation
Institute (VTTI) completed its ``Driver Distraction in Commercial
Vehicle Operations'' study \4\ and released the final report on October
1, 2009. The purpose of the study was to investigate the prevalence of
driver distraction in CMV safety-critical events (i.e., crashes, near-
crashes, lane departures, as explained in the VTTI study) recorded in a
naturalistic data set that included over 200 truck drivers and 3
million miles of data. The dataset was obtained by placing monitoring
instruments on vehicles and recording the behavior of drivers
conducting real-world revenue-producing operations. The study found
that drivers were engaged in non-driving related tasks in 71 percent of
crashes, 46 percent of near-crashes, and 60 percent of all safety-
critical events. Tasks that significantly increased risk included
texting, looking at a map, writing on a notepad, or reading.
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\3\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J.
(2009) Driver distraction in commercial vehicle operations.
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor
Carrier Safety Administration, July 2009. Retrieved October 20,
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-
reports.aspx?
\4\ The formal peer review of the ``Driver Distraction in
Commercial Vehicle Operations Draft Final Report'' was completed by
a team of three technically qualified peer reviewers who are
qualified (via their experience and educational background) to
critically review driver distraction-related research.
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Odds ratios (OR) were calculated to identify tasks that were high
risk. For a given task, an odds ratio of ``1.0'' indicated the task or
activity was equally likely to result in a safety-critical event as it
was a non-event or baseline driving scenario. An odds ratio greater
than ``1.0'' indicated a safety-critical event was more likely to
occur, and odds ratios of less than ``1.0'' indicated a safety-critical
event was less likely to occur. According to this research, drivers
dialing a cell phone took their eyes off the forward roadway for an
average of 3.8 seconds and for 1.3 seconds when talking/listening to a
hand-held phone. Drivers took their eyes off the forward roadway a
combined total of 5.1 seconds. At 55 mph (or 80.7 feet per second),
this equates to a driver traveling 411 feet. At 65 mph (or 95.3 feet
per second), the driver would have traveled 486 feet without looking at
the roadway. This clearly creates a significant risk to the safe
operation of the CMV.
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 dialing a cell phone is 2.5 and for talking/
listening to a hand-held phone is 0.2, which means that a combined 2.7
percent of the incidence of safety-critical events is attributable to
dialing and talking/listening to a hand-held phone, and thus, could be
avoided by not performing these activities.
Table 1--Odds Ratio and Population Attributable Risk Percentage by
Selected Task
------------------------------------------------------------------------
Population
attributable
Task Odds ratio risk
percentage *
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Complex Tertiary ** Task
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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
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Moderate Tertiary ** Task
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Use/reach for other electronic device... 6.7 0.2
Other--Moderate (e.g., open medicine 5.9 0.3
bottle)................................
Personal grooming....................... 4.5 0.2
Reach for object in vehicle............. 3.1 7.6
[[Page 23926]]
Look back in sleeper berth.............. 2.3 0.2
Talk or listen to hand-held phone....... 1.0 0.2
Eating.................................. 1.0 0
Talk or listen to CB radio.............. 0.6 *
Talk or listen to hands-free phone...... 0.4 *
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* 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
FMCSA Docket FMCSA-2009-0370, available at http://www.regulations.gov.
4. Cell Phone Distraction in Commercial Trucks and Buses: Assessing
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \5\
The purpose of this research was to conduct an analysis of
naturalistic data collected by DriveCam[supreg]. The introduction of
naturalistic driving studies that record drivers (through video and
kinematic vehicle sensors) in actual driving situations created a
scientific method to study driver behavior under the daily pressures of
real-world driving conditions. The research documented the prevalence
of distractions while driving a CMV, including both trucks and buses,
using an existing naturalistic data set. This data set came from 183
truck and bus fleets comprising a total of 13,306 vehicles captured
during a 90-day period. There were 8,509 buses and 4,797 trucks. The
data sets in the current study did not include continuous data; it only
included recorded events that met or exceeded a kinematic threshold (a
minimum g-force setting that triggers the event recorder). These
recorded events included safety-critical events (e.g., hard braking in
response to another vehicle) and baseline events (i.e., an event that
was not related to a safety-critical event, such as a vehicle that
traveled over train tracks and exceeded the kinematic threshold). A
total of 1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant
conflicts, and 211,171 baselines were captured in the dataset.
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\5\ Hickman, J., Hanowski, R., & Bocanegra, J. (2010).
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC:
Federal Motor Carrier Safety Administration. (Final Report due
Spring 2010).
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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 use
cell phones frequently, the data suggest that truck and bus drivers who
use their cell phone to make calls, text, e-mail, or access the
Internet are very likely to be involved in a safety-critical event.
Additional research and data are specifically identified in FMCSA's
NPRM on restricting cell phone use by CMV drivers.
E. Existing Prohibitions and Restrictions by Federal, State, and Local
Governments
1. Executive Order 13513
The President immediately used the feedback from the DOT Summit on
Distracted Driving and issued Executive Order 13513, which ordered
that:
Federal employees shall not engage in text messaging (a) when
driving a Government Owned Vehicle, or when driving a Privately
Owned Vehicle while on official Government business, or (b) when
using electronic equipment supplied by the Government while driving.
2. 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. FMCSA
In light of the available studies, the NTSB recommendation, and
MCSAC's recommendations, FMCSA has proposed a restriction on the use of
mobile (cellular) telephones by CMV drivers operating in interstate
commerce. The proposed rule would include definitions related to the
restriction. It also would add a driver disqualification provision for
interstate CMV drivers. A driver disqualification provision would also
be included for CDL holders convicted of two or more violations of
State or local traffic laws or ordinances on motor vehicle traffic
control concerning mobile telephone use.
FMCSA's NPRM would amend regulations in 49 CFR parts 383 and 384
concerning the Agency's CDL regulations, part 390 concerning general
applicability of the FMCSRs, part 391 concerning driver qualifications
and disqualifications, and part 392 concerning driving rules. In
general, the proposed requirements are intended to reduce the risks of
distracted driving by restricting mobile telephone use by a driver who
is operating a CMV in interstate commerce.
The proposed rule would also require interstate motor carriers to
ensure compliance by their drivers with the restrictions on use of a
mobile telephone while driving a CMV. Motor carriers would be
prohibited from requiring or allowing drivers of CMVs to use a mobile
telephone while operating in interstate commerce.
3. Federal Railroad Administration
On October 7, 2008, FRA published Emergency Order 26 (73 FR 58702).
Pursuant to FRA's authority under 49 U.S.C. 20102 and 20103, the order,
which took effect on October 1, 2008, restricts railroad operating
employees from using distracting electronic and electrical devices
while on duty. Among other things, the order prohibits both the use of
cell phones and texting. FRA cited numerous examples of the adverse
impact that electronic devices can have on safe operations. These
examples included fatal accidents that involved operators who were
distracted while texting or talking on a cell phone. In light of these
incidents, FRA is imposing restrictions on the use of such electronic
devices, both through its
[[Page 23927]]
order and a rulemaking that seeks to codify the order. In a NPRM
published May 18, 2010, FRA proposed to amend its railroad
communications regulations by restricting the use of mobile telephones
and other distracting electronic devices by railroad operating
employees (75 FR 27672).
4. State Restrictions
Nine States and the District of Columbia have traffic laws
prohibiting all motor vehicle drivers from using a hand-held mobile
telephone while driving. School bus drivers are currently prohibited
from any mobile telephone use in 19 States and the District of
Columbia. A list of these States can be found at the following Web
site: http://www.iihs.org/laws/cellphonelaws.aspx. Generally, the
State traffic laws are applicable to all drivers operating motor
vehicles within those jurisdictions, including CMV operators. Some
States are already tracking enforcement. For example, since March of
2008, when New Jersey's wireless hand-held telephone and electronic
communication device ban became effective, more than 224,000
citations--an average of almost 10,000 a month--were issued to
motorists violating this cell phone law.
Additionally, as part of its continuing effort to combat distracted
driving, DOT kicked off pilot programs in Hartford, Connecticut, and
Syracuse, New York, to test whether increased law enforcement efforts
can get distracted drivers to put down their mobile telephones and
focus on the road. During one week of the pilot program in Hartford,
police cited more than 2,000 drivers for talking on mobile telephones
and 200 more for texting while driving.
II. Applicability of this NPRM
PHMSA's Office of Hazardous Materials Safety is the Federal safety
authority for the transportation of hazardous materials by air, rail,
highway, and water. Under the Federal hazardous materials
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the
Secretary of Transportation is charged with protecting the nation
against the risks to life, property, and the environment that are
inherent in the commercial transportation of hazardous materials. The
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) are
promulgated under the mandate in Sec. 5103(b) of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.) that the Secretary of Transportation ``prescribe regulations for
the safe transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B)
provides that the HMR ``shall govern safety aspects, including
security, of the transportation of hazardous material the Secretary
considers appropriate.'' As such, PHMSA strives to reduce the risks
inherent to the transportation of hazardous materials in both
intrastate and interstate commerce.\6\
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\6\ The term ``intrastate commerce'' is trade, traffic, or
transportation within a single state. The term ``interstate
commerce'' is trade, traffic, or transportation involving the
crossing of a state boundary. Additionally, ``interstate commerce''
includes transportation originating or terminating outside the state
of United States. (See 49 CFR 390.5)
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The texting restrictions adopted by FMCSA in under Docket FMCSA-
2009-0370 have been incorporated into Sec. 392.80 of the FMCSRs and
apply to CMV motor carriers and drivers in interstate commerce. During
the coordination process for PHMSA's August 3, 2010 safety advisory
notice on distracted driving, PHMSA and FMCSA representatives expressed
concern that changes to the FMCSRs regarding distracted driving would
only apply to motor carriers and drivers of CMVs that operate in
interstate commerce.\7\ As such, any requirements adopted by FMCSA
regarding distracted driving would not apply to motor carriers and
drivers that transport covered hazardous materials in intrastate
commerce.
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\7\ In accordance with Sec. 390.3(a) the rules in Subchapter B,
including Parts 350-399, of the 49 CFR are applicable to all
employers, employees, and commercial motor vehicles, which transport
property or passengers in interstate commerce. The only FMCSA
regulations that are applicable to intrastate operations are: The
commercial driver's license (CDL) requirement, for drivers operating
commercial motor vehicles as defined in 49 CFR 383.5; controlled
substances and alcohol testing for all persons required to possess a
CDL; and minimum levels of financial responsibility for the
intrastate transportation of certain quantities of hazardous
materials and substances.
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PHMSA developed this NPRM to expand the limitations on the use of
hand-held mobile telephones proposed by FMCSA's NPRM to the
transportation of a quantity of hazardous materials requiring
placarding under Part 172 of the 49 CFR or any quantity of a material
listed as a select agent or toxin in 42 CFR Part 73 in intrastate
commerce. The safety benefits associated with limiting the distractions
caused by electronic devices, including cell phones, are equally
applicable to drivers transporting covered hazardous materials via
intrastate as they are to interstate commerce. The use of a hand-held
mobile telephone while driving constitutes a safety risk to the motor
vehicle driver, other motorists, and bystanders. As proposed in the
FMCSA NPRM, the consequences of using hand-held mobile telephones while
driving can include state and local sanctions, fines, and possible
revocation of commercial driver's licenses.
PHMSA has determined that the use of hand-held mobile phones
presents a hazard equally, whether the motor carrier is involved in
interstate or intrastate commerce. PHMSA estimates that there are
approximately 1,490 intrastate motor carriers that could be affected by
this rulemaking. Studies performed on behalf FMCSA have estimated that
the cost of a property damage only crash is $17,000. Crashes involving
a fatality are estimated to be approximately $6 million. Based on
estimates outlined in the Preliminary Regulatory Impact Assessment
PHMSA estimates the costs as follows:
Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
------------------------------------------------------------------------
Cost of Lost Carrier Productivity.......................... $5,148
Cost of Increased Fuel Consumption......................... $9,535
Cost of Parking, Entering and Exiting Roadway Crashes...... $10,335
------------
Total Costs............................................ $25,018
============
Benefit of Eliminating One Fatality........................ \1\ $6
Break-even Number of Lives Saved........................... < 1
Benefit of Eliminating One Crash........................... $17,000
Break-even of Number of Crashes Prevented.................. < 2
------------------------------------------------------------------------
\1\ In millions.
III. Summary of Changes
In accordance with the comments received and public meeting
discussion this NPRM proposes the following changes by section:
Section 177.804. We propose to add a new paragraph (b) to prohibit
the use of hand-held mobile telephones by any CMV driver transporting a
quantity of hazardous materials requiring placarding under Part 172 of
the 49 CFR or any quantity of a material listed as a select agent or
toxin in 42 CFR Part 73. As such, motor carriers and drivers who engage
in the transportation of covered materials must comply with the
distracted driving requirements in Sec. 392.82 of the FMCSR.
IV. Regulatory Analysis and Notices
A. Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under authority of the Federal hazardous
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes
the
[[Page 23928]]
Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous materials in
interstate, intrastate, and foreign commerce.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
PHMSA has determined that this rulemaking action is a significant
regulatory action under Executive Order 12866, Regulatory Planning and
Review, and significant under DOT regulatory policies and procedures
because of the substantial Congressional and public interest concerning
the crash risks associated with distracted driving, even though the
economic costs of the proposed rule do not exceed the $100 million
annual threshold.
Executive Order 12866 requires agencies to regulate in the ``most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' As discussed
throughout this rulemaking, the intent of this NPRM is to expand upon
the applicability of the FMCSA NPRM to prohibit use of cell phones by
drivers of motor vehicles that contain a quantity of hazardous
materials requiring placarding under Part 172 of the 49 CFR or any
quantity of a material listed as a select agent or toxin in 42 CFR Part
73. As a result, the population of motor carriers covered by this
proposed rule is comprised of a very small portion of motor carriers
operating in intrastate commerce.
PHMSA calculated its affected population by assessing hazmat
registration data from the 2010-2011 registration year. This data is
collected on DOT form F 5800.2 in accordance with Sec. 107.608(a) of
the 49 CFR. Generally, the registration requirements apply to any
person who offers for transportation or transports a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR.
Additional data collected on form F 5800.2 verify that the registrant
is indeed a carrier, the mode of transportation used, and the US DOT
Number.\8\ Using this key data from the registration form submissions
we can make some assumptions to estimate the number of motor carriers
subject to this NPRM. Based on our analysis of form 5800.2-18,841
persons have registered as motor carriers of hazardous materials. Of
those 18,841 registrants 17,599 included a US DOT Number. Therefore,
based on the registration data 1,242 motor carriers are considered
intrastate carriers. We compared these numbers with the FMCSA Motor
Carrier Management Information System (MCMIS).\9\ Based on MCMIS data
we verified that the 1,242 carriers identified through registration
data have not been issued a US DOT Number by FMCSA.
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\8\ The FMCSRs require certain commercial carriers to obtain a
US DOT number. Companies that operate commercial vehicles
transporting passengers or hauling cargo in interstate commerce must
be registered with the FMCSA and must have a US DOT Number. The US
DOT Number serves as a unique identifier when collecting and
monitoring a company's safety information acquired during audits,
compliance reviews, crash investigations, and inspections. FMCSA
provides two services for people who need to obtain a U.S. DOT
number. The MC-150 form can be downloaded from the FMCSA Web site in
PDF form and mailed in; or, they may file electronically via the web
site. Both options are found at the following URL: http://
www.fmcsa.dot.gov/factsfigs/formspubs.htm.
\9\ MCMIS contains information on the safety fitness of
commercial motor carriers (truck & bus) and hazardous material
shippers subject to both the FMCSRs and the HMR. This information is
available to the general public through the MCMIS Data Dissemination
Program.
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To better define the population of intrastate carriers subject to
this rulemaking we assessed the data further. Generally, registration
data is limited to persons that offer or transport placarded quantities
of hazardous materials. Registration data does not include persons that
transport a material listed as a select agent or toxin in 42 CFR Part
73. In addition, the data includes those carriers that are required to
obtain a US DOT Number through their state even if they operate solely
in intrastate commerce. In select states, all registrants of commercial
motor vehicles, even intrastate and non-motor carrier registrants, are
required to obtain a US DOT Number as a necessary condition for
commercial vehicle registration. FMCSA indicates that 28 states
currently require motor carriers to obtain a US DOT Number, regardless
if they operate in interstate or intrastate commerce.\10\ Based on
these assumptions, the number of intrastate carriers identified through
hazmat registration data may be under estimated by up to 60% to 70%.
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\10\ ``What is a USDOT Number?'' See: http://www.fmcsa.dot.gov/
registration-licensing/registration-USDOT.htm.
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Based on the assumptions outlined above and PHMSA's desire to take
a conservative approach to the affected population we will multiply the
number of intrastate carriers identified through registration data by a
20% under reporting factor. This will result in a total population
affected by this rulemaking of 1,490 intrastate carriers (1,242 x 1.20
= 1,490). This conservative estimate ensures that PHMSA is fully
considering the impacts of expanding applicability of the FMCSA NPRM to
prohibit cell phone by drivers of motor vehicles that contain a
quantity of hazardous materials requiring placarding under Part 172 of
the 49 CFR or any quantity of a material listed as a select agent or
toxin in 42 CFR Part 73.
The regulatory evaluation prepared in support of this rulemaking
considers the following potential costs: (a) Loss in carrier
productivity due to time spent while parking or pulling over to the
side of the roadway to make cell phone calls; (b) increased fuel usage
due to idling as well as exiting and entering the travel lanes of the
roadway; and (c) increased crash risk due to covered CMVs that are
parked on the side of the roadway and exiting and entering the travel
lanes of the roadway. The regulatory evaluation also considers
potential costs to the states. However, since the analysis does not
yield appreciable costs to the states, further analysis pursuant to the
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) was deemed
unnecessary.
PHMSA estimates that this proposed rule will cost $ 25,018
annually. Additionally, PHMSA has not identified a significant increase
in crash risk associated with drivers' strategies for complying with
this proposed rule. As indicated in the regulatory evaluation, a crash
resulting in property damage only (PDO) averages approximately $17,000
in damages. Consequently, the cell phone use restriction would have to
eliminate just two PDO crash every year for the benefits of this
proposed rule to exceed the costs. A summary of the costs and threshold
analysis is provided in the following table:
Summary of Costs and Threshold Analysis
------------------------------------------------------------------------
------------------------------------------------------------------------
Cost of Lost Carrier Productivity.......................... $5,148
Cost of Increased Fuel Consumption......................... $9,535
Cost of Parking, Entering and Exiting Roadway Crashes...... $10,335
------------
Total Costs............................................ $25,018
============
Benefit of Eliminating One Fatality........................ \1\ $6
Break-even Number of Lives Saved........................... < 1
------------------------------------------------------------------------
\1\ In millions.
C. Executive Order 13132
Executive Order 13132 requires agencies to assure meaningful and
timely input by state and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
states, on the relationship between the national
[[Page 23929]]
government and the states, or on the distribution of power and
responsibilities among the various levels of government. A rule has
implications for Federalism under Executive Order 13132, Federalism, if
it has a substantial direct effect on state or local governments and
would either preempt state law or impose a substantial direct cost of
compliance on them. We invite state and local governments to comment on
the effect that the adoption of this rule may have on state or local
safety or environmental protection programs.
D. Executive Order 13175
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'').
Because this proposed rule does not significantly or uniquely affect
the communities of the Indian tribal governments and does not impose
substantial direct compliance costs, the funding and consultation
requirements of Executive Order 13175 do not apply.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
PHMSA has conducted an economic analysis of the impact of this
proposed rule on small entities and certifies that a Regulatory
Flexibility Analysis is not necessary because the rule will not have a
significant economic impact on a substantial number of small entities
subject to the requirements of this proposed rule. We assume that all
of the 1,490 motor carriers identified by this proposed rule are small
entities. However, the direct costs of this rule that small entities
may incur are only expected to be minimal. They consist of the costs of
lost productivity from foregoing cell phone use while on-duty and fuel
usage costs for pulling to the side of the road to idle the truck or
passenger-carrying vehicle and making a cell phone call. The majority
of motor carriers are small entities. Therefore, PHMSA will use the
total cost of this proposed rule ($25,018) applied to the number of
small entities (1,490) as a worse case evaluation which would average
$16.79 annually per carrier.
F. Executive Order 13272 and DOT Regulatory Policies and Procedures
This notice has been developed in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure that potential impacts of draft
rules on small entities are properly considered.
G. Paperwork Reduction Act
This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
H. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
I. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose unfunded mandates, under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either state, local, or tribal governments,
in the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.dot.gov. This proposed rule is not a privacy-sensitive
rulemaking because the rule will not require any collection,
maintenance, or dissemination of Personally Identifiable Information
(PII) from or about members of the public.
K. National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major Federal actions
and that they prepare a detailed statement on actions significantly
affecting the quality of the human environment. PHMSA assessment did
not reveal any significant positive or negative impacts on the
environment expected to result from the rulemaking action. There could
be minor impacts on emissions, hazardous materials spills, solid waste,
socioeconomics, and public health and safety. Interested parties are
invited to address the potential environmental impacts of regulations
applicable to the storage of explosives transported in commerce. We are
particularly interested in comments about safety and security measures
that would provide greater benefit to the human environment or on
alternative actions the agency could take that would provide beneficial
impacts.
List of Subjects in 49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapters I and III are
proposed to be amended as follows:
PART 177--CARRIAGE BY PUBLIC HIGHWAY
1. The authority citation for part 177 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. Section 177.804 is amended by adding a new paragraph (c) to read
as follows:
Sec. 177.804 Compliance with Federal Motor Carrier Safety
Regulations.
* * * * *
(c) Prohibition against hand-held mobile telephones. In accordance
with Sec. 392.82 of the FMCSRs a person transporting a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR
or any quantity of a material listed as a select agent or toxin in 42
CFR Part 73 may not engage in, allow, or require use of a hand-held
mobile telephone while driving.
Issued in Washington, DC, on April 21, 2011, under authority
delegated in 49 CFR Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-10140 Filed 4-28-11; 8:45 am]
BILLING CODE 4910-60-P
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