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[Federal Register: January 28, 2011 (Volume 76, Number 19)]
[Proposed Rules]
[Page 5120-5129]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja11-20]
----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 177
Federal Motor Carrier Safety Administration
49 CFR Part 392
[Docket Numbers PHMSA-2010-0319 (HM-255) & FMCSA-2006-25660]
RIN 2137-AE69 & 2126-AB04 &
Highway-Rail Grade Crossing; Safe Clearance
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
and Federal Motor Carrier Safety Administration (FMCSA), U.S.
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: FMCSA and PHMSA propose to amend the Federal Motor Carrier
Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs),
respectively, to prohibit a motor vehicle driver from entering onto a
highway-rail grade crossing unless there is sufficient space to drive
completely through the grade crossing without stopping. This action is
in response to section 112 of the Hazardous Materials Transportation
Authorization Act of 1994. The intent of this rulemaking is to reduce
highway-rail grade crossing crashes.
DATES: Send your comments on or before March 29, 2011.
ADDRESSES: You may submit comments identified by Federal Docket
Management System Numbers PHMSA-2010-0319 (HM-255) and FMCSA-2006-25660
by any of the following methods:
Web Site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. Follow the
instructions for submitting comments on the Federal electronic docket
site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001.
Hand Delivery: Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the Agency names and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. For
[[Page 5121]]
detailed instructions on submitting comments and additional information
on the rulemaking process, see the Public Participation heading below.
Note that all comments received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including any personal information provided.
Please see the Privacy Act heading below.
Docket: For access to the docket to read background documents or
comments received, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov at any time or to
the ground floor, room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday,
except Federal holidays.
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
January 17, 2008 (65 FR 19476) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public participation: The http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov Web site is
generally available 24 hours each day, 365 days each year. You can get
electronic submission and retrieval help and guidelines under the
``help'' section of the http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov Web site and also at
the DOT's http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://docketsinfo.dot.gov Web site. If you want us to notify
you that we received your comments, please include a self-addressed,
stamped envelope or postcard or print the acknowledgement page that
appears after submitting comments online.
Comments received after the comment closing date will be included
in the docket, and we will consider late comments to the extent
practicable. FMCSA and PHMSA, however, may issue a final rule at any
time after the close of the comment period.
FOR FURTHER INFORMATION CONTACT: At FMCSA: Mr. Thomas Yager, Driver and
Carrier Operations; or MCPSD@dot.gov. Telephone (202) 366-4325. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays. At PHMSA: Mr. Ben Supko, Office of Hazardous
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590 0001.
SUPPLEMENTARY INFORMATION:
Background
Section 112 of the Hazardous Materials Transportation Authorization
Act of 1994 (HMTAA) [Pub. L. 103-311, title I, 108 Stat. 1673, 1676,
August 26, 1994] requires FMCSA and PHMSA to amend the FMCSRs and the
HMRs, respectively, to prohibit drivers of motor vehicles from driving
onto a highway-rail grade crossing unless there is sufficient space to
drive completely through the grade crossing without stopping.
(Throughout the remainder of this document, FMCSA and PHMSA use the
term ``grade crossing'' to refer to public, open, at-grade highway-rail
grade crossings, unless otherwise noted.) The report by the Senate
Committee on Commerce, Science, and Transportation (December 9, 1993)
states that the intent of section 112 was to ``* * * improve safety at
highway-railroad crossings in response to fatalities that have occurred
from accidents involving commercial motor vehicle operators who failed
to use proper caution while crossing.'' The report also states that
``[t]he Committee believes that imposing a Federal statutory obligation
on drivers of all commercial motor vehicles to consider whether they
can cross safely and completely * * * will help to reduce the number of
tragedies associated with grade crossing accidents'' (Senate Report No.
103-217, at 11 (1994), reprinted in 1994 U.S.C.C.A.N. 1763, 1773). The
consequences of a motor vehicle failing to clear the tracks at a grade
crossing are potentially serious, particularly if a vehicle or train is
transporting hazardous materials or passengers. Over time, increased
motor vehicle traffic and congestion at some grade crossings, as well
as increased train movements, may amplify this risk.
The Manual on Uniform Traffic Control Devices (MUTCD 2009 edition),
published by the Federal Highway Administration (FHWA) and incorporated
by reference in 23 CFR part 655, subpart F, describes in chapter 8A the
length of roadway necessary for a particular vehicle to clear the
tracks safely as the ``clear storage distance.'' \1\ Chapter 8 guidance
material also refers to ``storage space.'' ``Storage space'' means the
space available for stationary vehicles between a traffic control
device (traffic signal, stop sign, or yield sign) and the railroad
crossing behind them.
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\1\ See http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://mutcd.fhwa.dot.gov.
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I. Legal Basis for the Rulemaking
This rulemaking is based on the authority of the Motor Carrier Act
of 1935 (MCA or 1935 Act) and the HMTAA. The 1935 Act provides that
``The Secretary of Transportation may prescribe requirements for (1)
qualifications and maximum hours of service of employees of, and safety
of operation and equipment of, a motor carrier; and, (2) qualifications
and maximum hours of service of employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of
operation'' [49 U.S.C. 31502(b)]. Pursuant to 49 U.S.C. 31501(2), the
definitions used in 49 U.S.C. 13102 apply to the 1935 Act. ``Motor
carrier,'' therefore, means ``a person providing motor vehicle
transportation for compensation'' [49 U.S.C. 13102(14)]; and ``motor
private carrier'' means ``a person, other than a motor carrier,
transporting property by motor vehicle when--(A) the transportation is
as provided in section 13501 of this title [i.e., in interstate
commerce]; (B) the person is the owner, lessee, or bailee of the
property being transported; and (C) the property is being transported
for sale, lease, rent, or bailment or to further a commercial
enterprise'' [49 U.S.C. 13102(15)].
The grade crossing regulations set forth in 49 CFR 392.12 of this
NPRM pertain directly to the ``* * * safety of operation'' of the motor
carriers over which FMCSA has jurisdiction. The adoption and
enforcement of such rules was specifically authorized by the MCA. This
proposed rule is based, in part, on that authority.
Before prescribing any regulations, FMCSA must also consider their
``costs and benefits'' [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those
factors are also discussed in this proposed rule.
This NPRM is also based on the authority of the Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.), under which, 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. Section 5103(b)(1)(B) provides that PHMSA's
Hazardous Materials Regulations (HMR; 49 CFR Parts 171 through 180)
``shall govern safety aspects, including security, of the
transportation of hazardous material the Secretary considers
appropriate.'' As such, PHMSA has the authority to adopt requirements
pertaining to hazardous materials transportation that are applicable to
both intrastate and interstate commerce. The amendments to 49 CFR
177.804 proposed here are based directly on PHMSA's authority.
The primary impetus for this rulemaking is section 112 of the
[[Page 5122]]
HMTAA, which directed the Secretary of Transportation to adopt a rule
to prohibit the driver of a commercial motor vehicle (CMV) from driving
onto a grade crossing ``without having sufficient space to drive
completely through the crossing without stopping.'' Section 112 reads
as follows:
Sec. 112 Grade Crossing Safety.
The Secretary of Transportation shall, within 6 months after the
date of enactment of this Act, amend regulations--
(1) under chapter 51 of title 49, United States Code (relating
to transportation of hazardous materials), to prohibit the driver of
a motor vehicle transporting hazardous materials in commerce, and
(2) under chapter 315 of such title (relating to motor carrier
safety) to prohibit the driver of any commercial motor vehicle, from
driving the motor vehicle onto a highway-rail grade crossing without
having sufficient space to drive completely through the crossing
without stopping. [108 Stat. 1676]
Section 112(1), of HMTAA mandates a change to prohibit the driver
of a commercial motor vehicle that is transporting hazardous materials
from driving the motor vehicle onto a highway-rail grade crossing
without having sufficient space to drive completely through the
crossing without stopping. Because the safety benefits associated with
this section are equally applicable to drivers operating in intrastate
commerce as they are to interstate commerce, this Section falls under
chapter 51 of title 49 U.S.C. and corresponding changes would be
incorporated into Sec. 177.804 of the HMR. However, to promote
consistency between PHMSA and FMCSA, the definition of ``hazardous
materials,'' provided by the Federal Motor Carrier Safety Regulations
(FMCSRs; 49 CFR Parts 350-399), is used to define the scope of this
Section.
FMCSA defines ``hazardous materials'' in Sec. 383.5 of the 49 CFR
as follows:
Hazardous materials means any material that has been designated as
hazardous under 49 U.S.C. 5103 and is required to be placarded under
subpart F of 49 CFR part 172 or any quantity of a material listed as a
select agent or toxin in 42 CFR part 73.
Based on this definition and PHMSA's authority, the scope of the
proposed changes to 49 CFR 177.804 encompass all drivers who transport
a quantity of hazardous materials requiring placarding under Part 172
of the 49 CFR or any quantity of a material listed as a select agent or
toxin in 42 CFR Part 73. This includes drivers of motor vehicles of any
size that are used to transport the materials covered by the FMCSA
definition. Additionally, it includes drivers engaged in intrastate or
interstate commerce.
Although section 112(2) refers to the driver of a ``commercial
motor vehicle'' under chapter 315 of title 49, the relevant portion of
that chapter--49 U.S.C. 31502(a)-(b)--does not use the term
``commercial motor vehicle,'' referring instead to ``motor carriers''
and ``motor private carriers'' as defined in 49 U.S.C. 13102 (the
definitions of ``motor carrier'' and ``motor private carrier'' are
discussed above). A ``motor vehicle'' is defined in section 13102(16)
as ``a vehicle, machine, tractor, trailer, or semitrailer propelled or
drawn by mechanical power and used on a highway in transportation, or a
combination determined by the Secretary, but does not include a
vehicle, locomotive, or car operated only on a rail, or a trolley bus
operated by electric power from a fixed overhead wire, and providing
local passenger transportation similar to street-railway service.''
These are the definitions that determine the scope of 49 CFR 392.12,
the FMCSA portion of this NPRM.
It should be noted that, unlike ``CMV,'' the defined term that
describes the motor vehicles over which FMCSA has jurisdiction in many
other provisions of the FMCSRs, a ``motor vehicle,'' as defined in
section 13102(16), does not have a minimum weight threshold. This
proposed rule, therefore, applies to the operation in interstate
commerce of any motor vehicle used by a for-hire ``motor carrier'' or a
``motor private carrier'' in furtherance of a commercial enterprise,
even if its gross vehicle weight (GVW) or gross vehicle weight rating
(GVWR) is less than the 10,001-pound threshold for a CMV. In addition,
Sec. 392.12 would not apply to a private carrier of passengers because
the definition of a ``motor private carrier'' in section 13102(15)
covers only the transportation of ``property,'' not passengers.
II. History
On July 30, 1998, FHWA published an NPRM to implement section
112(2) (63 FR 40691). The NPRM proposed to amend the FMCSRs by adding a
new section, 49 CFR 392.12, to read as follows: ``A driver of a
commercial motor vehicle shall not drive onto a highway-rail grade
crossing without having sufficient space to drive completely through
the crossing without stopping.''
The Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159,
113 Stat. 1748, December 9, 1999) created FMCSA as a new operating
administration of DOT, effective January 1, 2000. FMCSA assumed the
motor carrier safety functions previously exercised by FHWA's Office of
Motor Carriers.
Withdrawal of 1998 NPRM
On April 28, 2006, FMCSA withdrew the 1998 NPRM [71 FR 25128].
FMCSA stated:
After reviewing the comments to the NPRM and the transcript of
the [November 9, 1999] public meeting, FMCSA has concluded that this
rulemaking has created a great deal of misunderstanding and should
be terminated.
FHWA asked the States for information on the number and location
of highway-railroad grade crossings with inadequate storage--and on
alternative crossings--as the first step in estimating the costs and
benefits of the rule required by Section 112. In view of the
expected complexity of that analysis, the Agency needed as much
information as possible. Many State agencies, however, seem to have
assumed that they were required to provide the information; that the
final rule would then require them to reconstruct, rewire, reroute
or otherwise correct every inadequate crossing; and that the Agency
was indifferent to the costs of such an undertaking. In fact, the
time, difficulty and cost involved in collecting reliable data on
highway-railroad grade crossings became a primary focus of the
comments.
Section 112 requires a rule applicable to drivers, not to
States. If the regulatory requirement prevented some motor carriers
from using a particular crossing because the storage distance is too
short for their normal vehicles, several options are available (such
as switching to shorter trucks or using alternate crossings) before
any reconstruction efforts suggested by the State commenters need to
be considered. And even then, significant civil engineering projects
are likely to have a low priority. Consultations among government
entities, truckers, and the shippers they serve might produce quick
and simple solutions.
Therefore, FMCSA terminates this rulemaking and will open a new
one less burdened by previous misunderstandings. An NPRM to address
the requirements of Section 112 will be published when additional
analysis of grade crossing problems, which is now under way, has
been completed.
Survey of State Models
FMCSA reviewed State statutes on grade crossings. As expected, all
States have laws regarding operation of vehicles near or over grade
crossings. Most of these provisions are variations on the requirements
in 49 CFR 392.10 and 392.11 (e.g., stopping between 15 and 50 feet from
the tracks, looking and listening for a train, crossing without
shifting gears, etc.). On the other hand, only 24 States have storage-
space laws similar or identical to the requirements of section 112 of
the HMTAA. The recently enacted provisions usually match section 112
very closely. The older laws, adopted in the 1970s and 1980s, prohibit
entering an intersection or grade crossing--even on a green
[[Page 5123]]
light--unless traffic conditions permit the vehicle to drive all the
way through without blocking traffic on the cross street or rail line.
Although it is not clear how the States interpret such provisions, the
reference to blocking traffic on the cross street or rail line might
mean that--unlike section 112--these laws would not prohibit a driver
from starting across an empty grade crossing with no train in sight if
a brief stop at a traffic sign or signal on the other side would leave
the rear of the vehicle on the tracks.
Grade Crossing Safety Outreach Activities
Since publication of the 1998 NPRM, various regulatory actions,
outreach initiatives, and research activities have helped to improve
grade crossing safety. FMCSA, the Federal Railroad Administration
(FRA), and the Federal Transit Administration (FTA) intensified their
outreach and educational activities to prevent grade crossing
crashes.\2\ In 1999, DOT convened a public meeting to promote
information sharing on grade crossing crashes involving CMVs. In
addition, FMCSA worked with FRA, FTA, and FHWA to update the
Department's ``1994 Grade Crossing Action Plan.'' In June 2004, the
Secretary issued the ``Action Plan for Highway-Rail Grade Crossing
Safety and Trespass Prevention,'' which focused Departmental and
private sector resources to enhance grade crossing safety by
distributing educational literature to heighten awareness about grade
crossings and the ``hump'' (or vertical alignment profile) challenges
they present, particularly to vehicles with long wheelbases or low-
hanging equipment. This educational focus also extended to the
development of improved highway route guidance to identify and help
drivers avoid problematic grade crossings. In 2006, FMCSA, in
collaboration with FRA, issued laminated visor cards for drivers,
outlining safety tips for crossing railroad tracks. DOT and its
agencies will continue to develop further outreach and education
efforts.
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\2\ The FRA uses the terms ``accident'' and ``incident'' in its
definitions and databases used to collect data on grade crossings.
The variations do not rise to a level of significance; however,
FMCSA uses the term ``crash'' in its publications, except when the
terms ``accident'' or ``incident'' appear in names or quotes.
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2006 Public Meeting and Comments
On September 20, 2006, following notice in the Federal Register,
FMCSA, in conjunction with FHWA, FRA, and PHMSA, held a public meeting
in Washington, DC, to provide all interested parties an opportunity to
express their views on this rulemaking. Only two members of the public
attended, including a representative from the Association of American
Railroads (AAR). There was a detailed discussion of the subject matter
with that representative. A copy of the transcript from that meeting is
available in docket FMCSA-2006-25660.
The Owner Operator Independent Drivers Association, Inc. (OOIDA)
submitted the only comments during the public comment period for the
meeting. OOIDA recommended three things. First, OOIDA suggested that
FMCSA should provide pavement markings and signage at or near grade
crossings to indicate the storage space available to CMV drivers. FMCSA
and PHMSA do not have the statutory authority to mark, sign, or require
others to mark roads and provide signs at or near grade crossings.
FHWA, however, has funding available annually under 23 U.S.C. 104(b)(5)
(``highway safety improvement program'') as a set aside under 23 U.S.C.
148(a)(3) (``highway safety improvement project'') and 23 CFR part 924,
Highway Safety Improvement Program, for a variety of highway safety
improvement projects (HSIPs). Eligible HSIPs include: (1) Construction
of projects for the elimination of hazards at a public railroad
crossing that is eligible for funding under 23 U.S.C. 130; (2)
improvement of highway signage and pavement markings; and (3)
installation of a traffic control or other warning device at a location
with high crash potential. FMCSA and PHMSA will bring OOIDA's
suggestion to the attention of FHWA. We note that competition for
limited HSIP resources means that States and other public authorities
must decide whether and when particular grade crossings might get
pavement markings and signage and that not all grade-crossing
improvements are likely to be funded.
Second, OOIDA suggested that FMCSA undertake additional comparative
analyses to determine the number of grade crossings with inadequate
storage space in industrial areas. OOIDA suggested that some such grade
crossings are rarely used by trains and that regulatory prohibitions in
these cases may be far more expensive than any possible benefits.
Defining an ``industrial area'' has proven to be difficult and somewhat
subjective. FMCSA and PHMSA do not agree that such comparative analyses
are necessary. The regulation proposed today may occasionally--though
not frequently--cause disproportionate expense, as OOIDA says; but this
is a statutory mandate.
Finally, OOIDA suggested FMCSA and PHMSA consider educational
outreach through State driver licensing agencies to inform automobile
drivers of the risks of passing CMVs to occupy space left at the head
of the queue by prudent truck drivers at grade crossings. OOIDA
reported that its members increasingly witness this practice, which
forces CMV drivers to wait through several cycles of the traffic
signals before being able to cross. According to OOIDA members, some
States and localities have programmed traffic lights with cycles so
short that CMVs are often prevented from crossing, especially when
impatient automobile drivers rush to occupy any open space ahead of a
CMV. This sometimes results in automobile drivers becoming trapped on
the tracks when the crossing alarm sounds. OOIDA suggests creating
informational signage to inform automobile drivers of the risks
involved in such me-first tactics. FMCSA will encourage Motor Carrier
Safety Assistance Program lead agencies to distribute grade crossing
safety materials to their driver licensing colleagues in State
government and to suggest the addition of such material to State driver
training manuals that do not already cover the subject.
III. The Proposed Rule
Section 392.12
Today's NPRM would adopt the statutory language of section 112 as
49 CFR 392.12. While the proposed regulatory text is essentially the
same as that published in the 1998 NPRM, FMCSA believes the context in
which the proposal is presented will make the potential impact of the
rulemaking clearer.
Though the proposed rule would not explicitly prohibit motor
vehicles from using certain grade crossings, it might have that effect
where the clear storage distance between the train tracks and the next
traffic control device is less than the length of the vehicle. To
proceed through such a grade crossing, a motor vehicle driver would
either have to ignore the traffic control device or comply with the
traffic control device but violate the proposed rule by driving onto
the grade crossing without having sufficient space to drive completely
through the crossing without stopping.
Section 177.804
To ensure that the statutory language of section 112 applies to
both interstate and intrastate motor carriers, PHMSA would revise 49
CFR 177.804. PHMSA
[[Page 5124]]
proposes to add a new paragraph (b) to require drivers of commercial
motor vehicles 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 to comply with the
FMCSA safe clearance requirements for highway-rail crossings. As such,
motor carriers and drivers who engage in the transportation of covered
materials must comply with the safe clearance requirements in Sec.
392.12 of the FMCSRs.
Additional Assistance
FMCSA and PHMSA acknowledge OOIDA's concerns that this rulemaking
could result in CMV drivers encountering situations in which compliance
with the proposed rule might be difficult to achieve. Therefore, the
two Agencies will work with State enforcement agencies, the motor
carrier and railroad industries, and safety advocacy groups to provide
information to assist carriers in identifying options for traveling
safely through problematic grade crossings, including developing
educational and technical assistance and frequently asked questions.
FMCSA and PHMSA will also consider issuing regulatory guidance in
response to inquiries to provide additional assistance to the motor
carrier industry and State enforcement personnel in implementing the
rule.
IV. Scope of the Safety Problem
Generally, the grade crossings where the physical storage distance
is less than 100 feet would present the greatest challenge to motor
vehicle drivers. A typical 3-axle ``day cab'' (a tractor without a
sleeper berth) with a 2-axle, 53-foot semitrailer is 65 feet long. A
typical 3-axle truck tractor (with a sleeper berth) pulling a 2-axle,
53-foot semitrailer would be about 65 to 72 feet long. Typical cars on
American highways range from 13 to 18 feet \3\ in length. With one
short car and one long car ahead of it in a queue at a grade crossing
with 100 feet of storage space, a 65-foot truck might find it
impossible to clear the railroad track.
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\3\ FMCSA and PHMSA reviewed various auto manufacturers' Web
sites for the specific length measurements for small sports cars and
large luxury executive sedans to arrive at the 13 to 18 feet range.
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Number of Grade Crossings
The number of such grade crossings was determined by analyzing
several FRA and geographic mapping databases. Table I summarizes the
findings on grade crossings in the continental United States where the
clear storage space is limited. FMCSA and PHMSA estimate that the total
number of public, at-grade, open highway-rail grade crossings of all
types is 145,702. Of these, 84,835 grade crossings have an estimated
available clear storage distance of more than 1,500 feet.
There are about 60,867 grade crossings where the estimated
available clear storage distance is 1,500 feet or less. FMCSA and PHMSA
estimate that approximately 19,824 of these grade crossings have a
clear storage distance of less than 100 feet. FMCSA and PHMSA estimate
there are 41,043 grade crossings (60,867 minus 19,824 equals 41,043)
where the estimated available storage distance is greater than 100 feet
but 1,500 feet or less. In addition, there are 1,384 other grade
crossings estimated to have a relatively higher risk of storage-
distance issues due to a combination of factors such as the volume of
motor vehicle and CMV traffic, the number of train movements, and the
number of lanes of roadway. Therefore, the total number of grade
crossings of primary interest for this proposed rule is 21,208 (19,824
plus 1,384 equals 21,208), representing approximately 14.5 percent of
grade crossings in the United States.
Table I--Grade Crossings in the Continental U.S.
------------------------------------------------------------------------
Number of grade
Distance to nearest intersection crossings
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All Grade Crossings................................. 145,702
Greater Than 1,500 feet............................. 84,835
Less Than or Equal To 1,500 feet.................... 60,867
Less Than 100 feet.................................. 19,824
100-500 feet........................................ 26,959
501-1,000 feet...................................... 8,843
1,001-1,500 feet.................................... 5,241
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Number of Grade Crossing Crashes
FMCSA and PHMSA used FRA's Railroad Accident/Incident Reporting
System, Highway-Rail Grade Crossing Accident/Incident File to analyze
the extent to which storage distance has historically been recorded as
a factor in grade crossing crashes. FMCSA and PHMSA analyzed crashes
involving CMVs during the period 1998 through 2005. Table II summarizes
the estimated number of grade crossing crashes.
Table II--Crashes at Grade Crossings With Limited Storage Space 1998 to
2005
------------------------------------------------------------------------
Number of crashes
Definition (1998 to 2005)
------------------------------------------------------------------------
All Crashes at All Highway-Rail Grade Crossings 26,027
Involving All Types of Vehicles....................
All Crashes at Any One of the 21,208 FMCSA- 4,168
Identified Grade Crossings of Interest to the
Proposal's Regulatory Impact Assessment--......
--With a Train Striking a Truck or Bus--.... 890
--Stopped or Trapped on the Crossing--...... 289
--Definitely or Probably Storage Related.... 32
[[Page 5125]]
--Possibly Storage Related *................ 122
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* In order to ensure adequate consideration of the potential that the
crash was storage related, this number was developed using the same
proportion as those with sufficient narrative information, i.e.,
assuming 42.1 percent of crashes with indeterminate narratives are
classified as storage-distance related. (See Regulatory Impact
Assessment in dockets PHMSA-2010-0319 (HM-255) or FMCSA-2006-25660 for
further information.)
V. Costs and Benefits of Rule Implementation
Data are not available to estimate with any degree of certainty the
costs and benefits of implementing this rule. However, the Agencies are
required by statute to implement a rule prohibiting drivers from going
across grade crossings unless there is sufficient space to clear the
crossings completely without stopping. States with existing statutes or
regulations similar to the proposed Federal rule have somewhat lower
crash rates at grade crossings identified as having significant risk of
storage-related issues. While factors other than the States' storage-
space rules may be responsible for some of the differences in crash
rates, the Agencies believe the differential is large enough to suggest
that such rules have safety benefits. The States' voluntary adoption of
storage-space rules also suggests that the costs of implementing the
requirements have not proven to be an issue with the States or with the
motor carrier industry. Based on the safety impacts seen in the States
that have adopted requirements similar to those considered in this
rulemaking, FMCSA and PHMSA believe the rule would provide a cost-
beneficial enhancement to safety.
As mentioned above in the Legal Basis section of the preamble, CMVs
have a minimum weight threshold of 10,001 pounds. However, the ``motor
vehicles'' to which the proposed rule would apply have no such
threshold; any motor vehicle, no matter how small, used by a ``motor
carrier'' or ``motor private carrier'' in interstate commerce in
furtherance of a commercial enterprise would be subject to the proposed
rule. Yet these lighter vehicles--mainly pickup trucks and work vans--
are unlikely to be affected by this proposal because virtually every
grade crossing has enough storage space to accommodate one of them; and
they are simply too short and maneuverable to be trapped on grade
crossings with storage space for several vehicles. Even if traffic
suddenly bunched up, leaving one of these vehicles stopped on the
tracks, it could drive onto the shoulder or otherwise maneuver out of
harm's way. Because FMCSA has concluded that the proposed rule would
impose no costs on vehicles too small to qualify as CMVs, they are
ignored in the following analysis of costs and benefits.
Also mentioned in the Legal Basis section of this NPRM is that
PHMSA's authority includes intrastate carriers. PHMSA estimated the
number of carriers that may be affected by assessing hazmat
registration data from the 2010-2011 registration year. The data is
collected on DOT form F 5800.2 in accordance with Sec. 107.608(a) of
the 49 CFR. Generally, the registration requirements apply to any
person who offers for transportation or transports a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR.
Additional data collected on form F 5800.2 verify that the person is
indeed a carrier, the mode of transportation used, and the US DOT
Number. Based on PHMSA's analysis of form F 5800.2--18,841 persons have
registered as motor carriers of hazardous materials. Of those 18,841
persons 17,599 included a US DOT Number. Therefore, based on PHMSA's
registration data, the difference between persons registered as motor
carriers and persons that have obtained a US DOT Number is 1,242
(18,841 - 17,599 = 1,242). PHMSA considers these persons to be
intrastate motor carriers. PHMSA compared these numbers with the FMCSA
Motor Carrier Management Information System (MCMIS). Based on MCMIS
data, PHMSA verified that the 1,242 carriers identified through
registration data have not been issued a US DOT Number by FMCSA.
To ensure that all intrastate carriers are identified, PHMSA
multiplied the number of intrastate carriers identified through
registration data by a 20% underreporting factor. As a result, the
total population of intrastate carriers affected by this rulemaking is
1,490 intrastate motor carriers (1,242 x 1.20 = 1,490). For the
purposes of this NPRM the cost and benefit impact is applied to each
intrastate and interstate motor carrier equally. In the cost and
benefit discussions that follow the Agencies consider the costs and
benefits applicable to the total population of intrastate and
interstate carriers affected by this proposed rule. The Agencies
consider that, because the proposed rule does not mandate specific
changes in carrier operations, driver training, or grade crossing
infrastructure enhancements, its cost impacts should not be
significant. Because a substantial number of States already have in
place storage-space rules, motor vehicle drivers operating in or
through those States should have the experience and knowledge needed to
ensure compliance. FMCSA and PHMSA do not believe the rule is so
complex that it would require special training of drivers operating in
the other States. The Agencies request public comment on this issue.
For motor vehicles, the storage-distance related annual crash rate
per 1,000 grade crossings is 0.72.\4\ FMCSA and PHMSA found that the
difference in this rate between States that have laws/regulations
similar to the proposed Federal rule and those that do not is 0.285
crashes per 1,000 grade crossings per year. Thus, FMCSA and PHMSA would
expect 2.62 fewer crashes per year, if all States adopted the proposed
Federal rule,\5\ and 0.2 fewer train derailments.\6\
---------------------------------------------------------------------------
\4\ 122 crashes/8 years/21,208 grade crossings with limited
storage space x 1,000 = 0.72.
\5\ 0.000285 fewer incidents per grade crossing x 9,204 storage
space impacted grade crossings in states without a similar rule
equals 2.62 fewer crashes per year.
\6\ 14 derailments/122 grade crossing incidents x 2.62 incidents
prevented equals 0.2 fewer train derailments.
---------------------------------------------------------------------------
The total annual savings from crashes avoided (in 2009 dollars) is
estimated to be approximately $975,000. This consists of $381,000 in
reduced fatalities, $159,000 in reduced injuries, $1,600 in reduced
hazardous material spills, $31,000 in reduced highway property damage,
and $402,000 in reduced costs for train derailments. Total
implementation costs per year are estimated to be $279,000. Thus, the
expected annual savings from implementation of this proposed rule would
be about $696,000.
Table III displays the 10-year average annual and discounted net
costs and
[[Page 5126]]
benefits of the statute that we are implementing in this proposal.
Table III--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Proposed Grade
Crossing Storage-Space Rule
[In thousands, 2009 dollars]
----------------------------------------------------------------------------------------------------------------
10-Year 10-Year
Annual impact 10-Year total (Discounted at 3 (Discounted at 7
percent)* percent)*
----------------------------------------------------------------------------------------------------------------
Benefits................................ $975.0 $9,750 $8,566 $6,352
Costs **................................ $381.0 $3,810 $2,172 $1,818
Net Benefits............................ $696.0 $6,960 $5,419 $4,535
----------------------------------------------------------------------------------------------------------------
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4,
Regulatory Analysis, September 2003. Note that the first year costs and benefits are not discounted.
** Excludes any potential costs from rerouting due to uncertainty of costs. See Sensitivity Analysis section
below.
Sensitivity Analysis
It is important to note that the proposed rule could increase
vehicle miles traveled (VMT) due to re-routing. Because of major data
limitations, FMCSA and PHMSA performed a sensitivity analysis to
explore this possibility but are unable to identify what that
increase--if any--would be. The Congressionally mandated rule would be
cost beneficial if the additional VMT does not exceed 0.63 percent of
the maximum possible increase calculated in the sensitivity
analysis.\7\ The Agencies request comments from motor carriers on the
extent to which this rulemaking would cause them to reroute their motor
vehicles.
---------------------------------------------------------------------------
\7\ $696,000 in annual savings / 110,000,000 for maximum
additional VMT equals 0.63 percent.
---------------------------------------------------------------------------
This proposed storage-distance rule will discourage drivers of
motor vehicles, particularly tractor-trailer combinations, from using
grade crossings at which the storage distance is less than the overall
length of the vehicle. FMCSA and PHMSA believe most drivers will make
similar trips dozens or hundreds of times a year and experience the
need to re-route only the first time. This assumes that the drivers and
companies learn from their mistakes and avoid re-routing. Driver and
dispatcher awareness training and improved in-cab geographic
information system displays may allow companies and motor vehicle
drivers to plan routes more efficiently before or shortly after leaving
the point of origin, enabling them to avoid problem grade crossings
entirely, instead of re-routing appreciably at the last minute.
If significant numbers of companies or drivers do not plan their
trips efficiently, and drivers unexpectedly encounter grade crossings
with storage distances of less than their overall lengths (FMCSA and
PHMSA assumed that a distance of approximately 100 feet could be
problematical \8\), there would be additional costs to motor vehicle
operators and the public due to the rerouting required. These route
changes would likely result in additional VMT, with consequent
increases in operating costs and adverse safety impacts.
---------------------------------------------------------------------------
\8\ This distance is larger than most motor coach and tractor-
trailer lengths, but less than that of some multiple-trailer and
over-dimensional vehicles.
---------------------------------------------------------------------------
The sensitivity analysis for this proposed rule first determined an
estimated range of extra VMT that might result if all large motor
vehicles were re-routed away from all grade crossings with insufficient
storage space. This assumes that the drivers and companies never change
their behavior and always go to the grade crossing before re-routing,
for all trips taken along that route. FMCSA and PHMSA classify this
outcome as the high-end limit of VMT increases. The actual number of
re-routed trips would be only a small fraction of the possible number
because companies and drivers learn from their mistakes and avoid re-
routing. The low-end limit on VMT increases would occur if only minimal
routing changes are made. FMCSA and PHMSA also provide an estimate that
is intermediate between these two extremes. As indicated above, the
proposed rule would be cost beneficial if additional VMT does not
exceed 0.63 percent.
The second step in the sensitivity analysis is to calculate the
additional costs resulting from each of the proposed cases. These
include increases in large truck operating costs, and societal costs
associated with crashes that could be expected to occur as mileage
increases.
Based on the current analysis, there are an estimated 19,824 grade
crossings in the U.S. where the physical storage distance is estimated
to be less than 100 feet. For each of these grade crossings, the
average annual daily traffic (AADT) volume of all motor vehicles
passing through the grade crossing and the percent of vehicle traffic
through the crossing estimated to consist of ``trucks'' were obtained
from the FRA's Grade Crossing Inventory System (GCIS). The AADT figure
for all vehicle types was transformed into an annual average equivalent
figure and multiplied by the GCIS ``percent trucks'' data field to
produce an estimate of the total number of all CMV movements (of all
types of CMVs) through each grade crossing during the course of 1 year.
Because only a portion of these truck movements involve tractor-trailer
combinations of sufficient length, nationwide VMT distribution data by
vehicle size and type was used to refine the estimate (derived both
from the 2002 Vehicle Inventory and Use Survey (VIUS),\9\ and the 2005
Highway Statistics \10\).
---------------------------------------------------------------------------
\9\ U.S. Department of Commerce, Economics and Statistics
Administration, ``2002 Economic Census: Vehicle Inventory and Use
Survey,'' December 2004.
\10\ U.S. Department of Transportation, Federal Highway
Administration, Office of Highway Policy Information, ``Highway
Statistics,'' 2005.
---------------------------------------------------------------------------
The estimated total number of all truck movements at each grade
crossing is calculated from the total vehicle AADT data and the GCIS
``percent truck'' figure. This figure is then reduced further by 17
percent, to reflect the reduction in the relative share (from VIUS and
the 2005 Highway Statistics) of combination vehicles on non-access-
controlled roadways (where grade crossings would be found).
The additional miles that each motor vehicle might actually travel
is likely to vary widely at each grade crossing of interest based on
local conditions and the specific origin and destination of each trip.
An estimate of potential average additional miles traveled per motor
vehicle was developed for each grade crossing based on individual
inspection of approximately 10 randomly selected grade crossings each
[[Page 5127]]
in urban, suburban, and rural areas throughout the U.S. The actual
miles traveled estimates for the 10 grade crossings in each type of
area were then averaged and applied to all grade crossings (classifying
their locations as rural, suburban, or urban) based on an analysis
using geographic information systems (GIS) software. An estimate of the
extra VMT that might be generated by each motor vehicle trying to avoid
suspect grade crossings was determined to be about on average 0.75
miles. FMCSA and PHMSA believe numerous grade crossings close together
in metropolitan areas may result in such a small average extra VMT
estimate.
FMCSA and PHMSA included for analysis only the subset of grade
crossings with storage distance estimated to be 100 feet or less that
are located in the 27 jurisdictions (26 States and the District of
Columbia) that do not currently have storage-space laws similar or
identical to the requirements of this NPRM. The Agencies only include
grade crossings where storage distance is estimated to be 100 feet or
less since, for purposes of re-routing, these are the only crossings a
driver could easily identify. There are 8,749 such grade crossings in
these 27 jurisdictions.
The final estimate of the number of annual movements of large
trucks through each of these 8,749 affected grade crossings was then
multiplied by the estimates of additional miles traveled per trip to
derive a final maximum estimate of 110,902,390 additional VMT annually
(affecting about 146,307,200 motor vehicle trips annually) in the 27
jurisdictions where no equivalent State law currently exists.\11\
---------------------------------------------------------------------------
\11\ 8,749 affected grade crossings times ~12,676 per trip
additional miles estimated equals 110,902,390 additional VMT
annually.
---------------------------------------------------------------------------
The costs of these additional miles traveled by large trucks
include added motor carrier operating costs (driver salary, fuel,
depreciation, etc.), and safety-related costs associated with increased
risks of crashes. Estimates of the per-mile operating costs for large
trucks were derived from a September 2004 study of motor carrier
industry financial and operating performance profiles.\12\ The average
total operating cost for large motor vehicles carrying all commodity
types was estimated to be $1.93 per vehicle-mile in 2001. Inflating to
2009 dollars, this is equivalent to $2.34 per vehicle-mile.
---------------------------------------------------------------------------
\12\ Thomas M. Corsi, et al., ``Motor Carrier Industry Profile
Study: Financial and Operating Performance Profiles by Industry
Segment, 2001-2002,'' Office of Information Management, Federal
Motor Carrier Safety Administration, September 2004.
---------------------------------------------------------------------------
Estimates of safety-related costs were derived from average
fatality, injury, and property-damage-only incidence rates developed by
FMCSA for large truck transportation,\13\ and cost-per-incident
estimates. These results are summarized in Table IV below.
---------------------------------------------------------------------------
\13\ FMCSA, ``Large Truck Crash Facts,'' February 2007.
Table IV--Estimated Annual Motor Vehicle Operating and Safety Costs Resulting From Added VMT to Bypass Storage-
Space Impacted Grade Crossings
[$2009, thousands]
----------------------------------------------------------------------------------------------------------------
Mid-range Lower-end
Highest possible estimate; 10 estimate; 1
Cost category estimate of percent of maximum percent of maximum
additional VMT additional VMT additional VMT
----------------------------------------------------------------------------------------------------------------
Extra VMT........................................... 110,900 11,100 1,100
CMV Operations Crash Related:....................... $261,500 $ 26,100 $ 2,600
Fatalities.......................................... $ 15,600 $ 1,550 $ 200
Injuries............................................ $ 8,200 $ 800 <$ 100
Property Damage..................................... $ 500 <$ 100 <$ 100
Hazardous Material Spills........................... <$ 100 <$ 100 <$ 100
-----------------------------------------------------------
Total Costs..................................... $286,000 $28,700 $3,100
----------------------------------------------------------------------------------------------------------------
These additional operations and safety costs are several hundred
times greater than the estimated net benefits in Table III, which
ignores potential re-routing costs. The high-end estimated crash-
related costs, by themselves, are about 42 times greater than the total
annual net benefits of this proposal. Motor carriers, however, are
incentivized to minimize VMT in order to save time and money; FMCSA and
PHMSA believe that operators will be able to find alternate routes that
add little distance to their trips. We believe the lower-end estimate
of additional VMT in Table IV is likely to be the most realistic.
FMCSA and PHMSA seek additional information from the public to
further assess the costs and benefits of this proposal. FMCSA has found
no indications of problems caused by rerouting in those States with
laws similar to this NPRM. FMCSA and PHMSA seek comments from States
with laws similar to this proposal on how many extra miles, on average,
their grade crossing prohibitions force trucks and buses to travel to
avoid crossings with insufficient storage space.
Regulatory Analyses
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA and PHMSA have determined that this action is a non-
significant regulatory action within the meaning of Executive Order
12866. FMCSA and PHMSA expect the proposed rule would have minimal
costs and generate minimal public interest. Previous efforts to
implement section 112 of the HMTAA have elicited little public
response. Of the 45 comments submitted to the July 30, 1998, NPRM, 35
were from State agencies expressing concern that the rulemaking would
impose certain economic burdens on the States. As explained previously
in this NPRM, however, those concerns were based on a misunderstanding
of the applicability of the proposed rule. Comments were received from
three transportation industry associations (the American Trucking
Associations (ATA), AAR, the National School Transportation Association
(NSTA)) and three transit authorities, with only four comments from
other entities.
The Agencies note that when FMCSA held a public meeting on the
implementation of section 112 in September 2006, there were only two
participants--one from the AAR, none
[[Page 5128]]
from the motor carrier industry or the States. The interest initially
expressed by States in response to the 1998 NPRM seems to have
diminished since the NPRM was withdrawn in 2006, presumably because
FMCSA's discussion of the comments to the docket resolved their
concerns. The motor carriers and drivers to which this rule would
apply, as well as the associations that represent their interests, have
shown little interest in this proceeding; FMCSA and PHMSA therefore
believe the rulemaking is non-significant in the context of Executive
Order 12866.
The Agency has prepared a regulatory analysis of the costs and
benefits of this proposal. The estimated costs and benefits are small,
and the rule may be cost beneficial. That is not certain, however,
given the additional VMT that may be generated but that cannot be
reliably estimated. A copy of the analysis document is included in
docket FMCSA-2006-25660.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA and PHMSA have considered the effects of this proposed
regulatory action on small entities and determined that this proposed
rule would not have a significant economic impact on a substantial
number of small entities, as defined by the U.S. Small Business
Administration's Office of Size Standards.
FMCSA has determined that the requirements in this rulemaking apply
to a substantial number of small entities (i.e., small owner/operator
motor carriers and other small businesses employing CMV drivers). The
NPRM, however, does not mandate specific changes in carrier operations
or driver training. Any rerouting and other logistics costs that might
be borne by small carriers would occur only to the extent that their
private benefits were judged to be greater than their costs. Carriers
are presumed to pursue the most efficient transportation routes in
order to minimize time, fuel usage, tire wear-and-tear and dead
heading. Obtaining the most efficient route is a function of many
factors, one of which is the avoidance of deficient storage-space
railroad tracks. To the extent that existing carriers have not already
attained and incorporated efficient route plans, they may sustain a
revenue reduction, but it is one that is expected to be minimal and
temporary.
Also, there would probably be only minimal additional costs for
driver training as the training would probably occur as a modification
of emphasis in existing training curricula and would not likely add
extra time to the training requirement.
We estimated that a preponderance of this rule's implementation
costs, expected to be composed of government administrative,
enforcement, or training activities, will affect transportation
personnel in the 27 jurisdictions that do not have an existing law or
regulation similar to the proposed Federal rule.
Accordingly, the Administrators of FMCSA and PHMSA hereby certify
that this proposal would not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
There is only one circumstance under which this rulemaking would
impose an unfunded Federal mandate, as defined by the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1532, et seq.), resulting in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $140.3 million or more in any 1 year. If
drivers and motor carriers resolutely fail to learn from previous
experience (by repeatedly approaching railroad highway grade crossings
with storage space inadequate to accommodate their vehicles and then
turning away to find alternative crossings), the additional VMT
generated by these errors might have a cost exceeding the threshold for
this statute. FMCSA and PHMSA, however, believe that drivers and
carriers would make such mistakes only a few times, and thereafter
select streets and roads with appropriate grade crossings that do not
require re-routing. PHMSA and FMCSA, therefore, believe that this rule
would not impose an unfunded Federal mandate.
Executive Order 12988 (Civil Justice Reform)
This proposed action would meet 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 12630 (Taking of Private Property)
This proposed rulemaking 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 13132 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132. FMCSA and
PHMSA have preliminarily determined that this rulemaking would not have
a substantial direct effect on States, nor would it limit the policy-
making discretion of the States. Nothing in this document would preempt
any State law or regulation.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that FMCSA and PHMSA consider the impact of paperwork and other
information collection burdens imposed on the public. FMCSA and PHMSA
have determined that there are no current new information collection
requirements associated with this proposed rule.
National Environmental Policy Act
The Agencies analyzed this proposed rule for the purpose of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.) and determined under FMCSA's environmental procedures Order
5610.1, issued March 1, 2004 (69 FR 9680), that there is no adverse
impact to Air Quality because the Proposed Action would result in a
decrease in highway and rail vehicle emissions as a result of fewer
crashes. There are possible, moderately positive impacts to public
health and safety, specifically at grade crossings, based on a decrease
in the likelihood of fatalities and injuries as a result of CMV crashes
due to insufficient storage distance at grade crossings. There are no
identified overall negative environmental or socioeconomic impacts
associated with the proposed rule.
The beneficial impacts of the proposed rule include the positive
effect on hazardous materials transportation, reduced locomotive idling
time otherwise incurred as follow-on trains are delayed by derailments
at grade crossings, and public health and safety, specifically at grade
crossings. There are also net positive socioeconomic benefits, to motor
and rail carriers in particular, in addition to positive indirect
impacts to aspects of the physical and human environment.
FMCSA and PHMSA have also analyzed this rule under the Clean Air
Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and
[[Page 5129]]
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this action is exempt from the CAA's general
conformity requirement since it involves rulemaking and policy
development and issuance.
A copy of the joint FMCSA and PHMSA Environmental Assessment (EA)
is included in docket FMCSA-2006-25660. FMCSA and PHMSA request the
public to comment on this environmental assessment.
Executive Order 12898 (Environmental Justice)
FMCSA and PHMSA evaluated the environmental effects of this
proposed rule in accordance with Executive Order 12898 and determined
that there are neither environmental justice issues associated with its
provisions nor any collective environmental impact resulting from its
promulgation. Environmental justice issues would be raised if there
were ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. None of the alternatives analyzed in FMCSA's
EA, discussed under NEPA, would result in high and adverse
environmental impacts.
Executive Order 13211 (Energy Effects)
FMCSA and PHMSA analyzed this proposed action under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution or Use. FMCSA and PHMSA determined preliminarily
that it would not be a ``significant energy action'' under that
Executive Order because it would not be economically significant and
would not be likely to have a significant adverse effect on the supply,
distribution, or use of energy.
List of Subjects
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 392
Highway safety, Motor carriers.
In consideration of the foregoing, PHMSA and FMCSA propose to amend
title 49, Code of Federal Regulations, chapter I, part 177, and chapter
III, part 392, as set forth below:
PART 177--CARRIAGE BY PUBLIC HIGHWAY
1. The authority citation for part 177 is revised to read as
follows:
Authority: 49 U.S.C. 5101-5127; sec. 112 of Pub. L. 103-311, 108
Stat. 1673, 1676 (1994); 49 CFR 1.53.
2. Amend Sec. 177.804 by redesignating the existing text as
paragraph (a), amending newly designated paragraph (a) by adding a
paragraph heading, and by adding a new paragraph (b) to read as
follows:
Sec. 177.804 Compliance with Federal Motor Carrier Safety
Regulations.
* * * * *
(a) General. * * *
(b) Highway-rail crossings. Drivers of commercial motor vehicles
transporting a quantity of hazardous materials, as defined in 49 CFR
383.5, 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 must comply with the safe clearance requirements for highway-rail
crossings in Sec. 392.12 of the FMCSRs.
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
3. The authority citation for part 392 is revised to read as
follows:
Authority: 49 U.S.C. 13902, 31136, 31151, 31502; Section 112 of
Pub. L. 103-311, 108 Stat. 1673, 1676 (1994); and 49 CFR 1.73.
4. Section 392.12 is added to read as follows:
Sec. 392.12 Highway-rail crossings; safe clearance.
No driver of a commercial motor vehicle shall drive onto a highway-
rail grade crossing without having sufficient space to drive completely
through the crossing without stopping.
Issued in Washington, DC on January 20, 2011 under authority
delegated in 49 CFR part 1.
By the Federal Motor Carrier Safety Administration.
Anne S. Ferro,
Administrator.
By the Pipeline and Hazardous Materials Safety Administration.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2011-1841 Filed 1-27-11; 8:45 am]
BILLING CODE 4910-EX-P
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