[Federal Register: September 2, 1999 (Volume 64, Number 170)]
[Rules and Regulations]
[Page 48104-48111]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se99-18]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 383 and 384

[FHWA Docket No. FHWA-97-3103]
RIN 2125-AE28

Commercial Driver Disqualification Provision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA revises its regulations to require that commercial
motor vehicle (CMV) drivers who are convicted of violating Federal,
State, or local laws or regulations pertaining to railroad-highway
grade crossings be disqualified from operating a CMV. Penalties also
will be assessed against

[[Page 48105]]

employing motor carriers found to have knowingly allowed, permitted,
authorized, or required a driver to operate a CMV in violation of laws
or regulations pertaining to railroad-highway grade crossings. This
final rule completes an action initiated in response to the
requirements specified in section 403 of the ICC Termination Act
(ICCTA) of 1995. The purpose of this action is to enhance the safety of
CMV operations on our nation's highways.

EFFECTIVE DATE: October 4, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. David Goettee, Driver Division,
Office of Motor Carrier Research and Standards, (202) 366-4001, or Mr.
Charles Medalen, Office of the Chief Counsel, (202) 366-1354, Federal
Highway Administration, 400 Seventh Street, SW, Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this document may be downloaded using a
computer, modem and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
home page at: http://www.nara.gov/fedreg and the Government Printing
Office's web page at: http://www.access.gpo.gov/nara.

Background

    This final rule completes action initiated under section 403 of the
ICCTA (Pub. L. 104-88, 109 Stat. 803, 956, December 29, 1995, codified
at 49 U.S.C. 31310(h) and 31311(a)(18)) to achieve safer CMV driver
behavior when CMVs are crossing railroad-highway grade crossings.
Section 403 amended the Commercial Motor Vehicle Safety Act (CMVSA) of
1986, Pub. L. 99-570, 100 Stat. 3207-170, by adding subsection (h) to
49 U.S.C. 31310. The amendment requires sanctions and penalties for CMV
drivers who are convicted of violating laws or regulations pertaining
to railroad-highway grade crossings.
    The amendment also requires that monetary penalties be assessed
against employers found to have knowingly allowed, permitted,
authorized, or required an employee to operate a CMV in violation of a
law or regulation pertaining to railroad-highway grade crossings. It
requires States to adopt and enforce the Federal sanctions and
penalties prescribed for CMV drivers and employing motor carriers who
violate laws or regulations pertaining to railroad-highway grade
crossings.
    The FHWA published a notice of proposed rulemaking (NPRM) in the
Federal Register on March 2, 1998, (63 FR 10180) to request comment on
the proposed changes to 49 CFR Parts 383 and 384 in regard to
violations of railroad-highway grade crossing by drivers operating
CMVs. The comment period closed on May 1, 1998.

Discussion of Petitions

    The FHWA received five petitions between April 23, 1998, and May 1,
1998, to extend the comment period for the NPRM. The FHWA has decided
not to grant an extension because it believes the petitioners were
given more than adequate time to provide additional data to the docket.
    Shell Oil Products Company and Linden Bulk Transportation Company
believed more time was necessary to examine this subject. In particular
they wished to know if the proposed rule would apply only to the
Federal regulations at 49 CFR 392.10 and 392.11, or if it would apply
to all traffic laws of any jurisdiction. They also wanted to know what
protection a motor carrier has in the event a driver violates such a
law or regulation.
    Textile Chemical Company asked the same questions as Shell and
Linden. The Company also asked: ``If a carrier provides training under
HM-126F requirements for drivers concerning railroad crossings and
documents such training, would this action protect the carrier from
violating the proposed 49 CFR 383.37(d), if no complicity in the
violation was discovered?''
    North American Transportation Consultants wanted the same
information as requested by the Textile Chemical. They also asked
whether railroad-highway grade crossing safety violations were required
to be compatible with 49 CFR 392.10 and 392.11 to preserve uniformity.
If so, would the FHWA establish a review system to approve or reject
local laws covered under this proposal? They proposed to gather and
submit information to the docket regarding various local laws and
ordinances associated with railroad-highway grade crossing
requirements, and asked that the comment period be extended at least 90
days to accomplish those tasks.
    Decker Transport Company asked the same questions but inquired more
specifically how local laws that conflict with the provisions of 49 CFR
392.10 would be handled. They proposed to gather and submit to the
docket information concerning various local laws and ordinances
associated with railroad-highway grade crossing requirements.
    All five petitioners either wanted more time to collect data
regarding variations in State and local laws and regulations regarding
railroad-highway grade crossings, or additional information to help
them understand the scope of the rulemaking. It is unclear to the FHWA
how the data to be collected would be relevant to the specifications
contained in the ICCTA of 1995. In any case, no such information was
provided to the docket. The additional information requested in the
petitions is given below in a question and answer format.
    Question: What regulations and laws are included under the proposed
new regulation?
    Response: This final rule specifically covers convictions for six
types of offenses, including failing to slow down, stop, check for
clear track, obey traffic control devices or law enforcement officials.
Also included are crossing without having sufficient undercarriage
clearance or sufficient space on the other side to clear the track
without stopping. It does not matter whether the offense involves
Federal, State, or local laws or regulations regarding railroad-highway
operations.
    Question: Are there any proposed Federal fines for drivers who are
convicted of such a violation?
    Response: No. This rule follows the process established by the
Commercial Motor Vehicle Safety Act of 1986. It sets a minimum
disqualification period for a driver convicted of one of these six
offenses. Any fines or penalties are left to the discretion of the
convicting jurisdiction.
    Due to the seriousness of this offense, Congress mandated that an
employer be subject to a civil penalty of up to $10,000, if the
employer knowingly allows, requires, permits, or authorizes a driver to
violate laws or regulations pertaining to railroad-highway grade
crossings.
    Question: Will the FHWA establish a review system to achieve
compatibility of State and local laws and regulations with 49 CFR
392.10 and 392.11 regarding railroad-highway grade crossing violations?
    Response: The FHWA has a system under 49 CFR part 350 of the
Federal Motor Carrier Safety Regulations (FMCSRs) that requires the
States to have laws and regulations compatible with the Federal
regulations. Under 49 CFR 350.15, States must certify annually that
they are enforcing the FMCSRs or compatible State laws. Section 355.21
also requires States to review their laws for compatibility every year,
and

[[Page 48106]]

Sec. 355.23 requires them to submit the results of the review along
with the annual State Enforcement Plan. Failure to adopt State laws and
regulations that are compatible with 49 CFR 392.10 and 392.11 can
result in a loss of Motor Carrier Safety Assistance Program funds.
    Failure of the States to adopt the penalties specified by 49 U.S.C.
31310(h) and this rule can result in the withholding of certain
Federal-aid funds under 49 U.S.C. 31314 for not being in substantial
compliance with the CDL program requirements.
    Question: If a local law or regulation contradicts the provisions
of 49 CFR 392.10, is that law or regulation covered by this rule?
    Response: See the previous question. The answer to that question
also applies to this one.
    Question: If a driver violates a law or regulation, how is it
determined if the employer is also in violation?
    Response: As previously established in 49 CFR 383.37 for other
employer responsibilities under the CDL program, it must be proven that
the employer knowingly allowed, required, permitted, or authorized a
driver to violate the law or regulation.
    Question: Why isn't violation of a railroad-highway grade crossing
law or regulation being included as an addition to the existing CDL
serious traffic violations?
    Response: These convictions have different conditions for
disqualification as specified in the ICCTA. The offenses classified as
serious traffic violations require a second conviction before a driver
receives at least a 60-day disqualification. Under this rule, a
conviction for a violation of any railroad-highway grade crossing law
or regulation requires at least a 60-day disqualification for a first
conviction.
    Question: Why doesn't this rule address other railroad-grade
crossing issues?
    Response: This rule was developed only to carry out the statutory
requirements in section 403 of the ICCTA.
    The NPRM stated that comments received after the comment closing
date would be filed in the docket and considered to the extent
practicable in developing the final rule. No new data or comments were
filed in the docket after the initial 23 submissions. The FHWA believes
it has given the petitioners more than adequate time to provide their
additional data since the docket closed on May 1, 1998. This is more
time than a formal extension of the comment period would have provided.
Based on this fact and the responses given above to questions raised by
the petitioners, the FHWA has decided to deny the five petitioners'
request for a formal extension of the comment period for the NPRM.

Discussion of Comments

List of Commenters

    Comments to the docket on the NPRM were received from 23 States,
individuals, companies, and organizations as follows:

Five States (Colorado Department of Public Safety, Missouri Department
of Revenue, California Highway Patrol, Florida Department of Highway
Safety, Wisconsin Department of Transportation);
Three individuals (Steven A. Tudor, E. Lowell Lewis, E. A. Brown);
Nine Companies (Decker Transport Company; Farmland Industries, Inc.;
Federal Express Corporation; Grammer Industries, Inc.; Linden Bulk
Transportation; National Railroad Passenger Corporation; Phibro-Tech;
Shell Oil Products Company; Textile Chemical Company);
Four associations (American Trucking Associations (ATA), National
Association of Railroad Passengers, Owner Operator Independent Drivers
Association, Truckload Carriers Association);
One safety advocacy group (Advocates for Highway and Auto Safety); and
One consultant (North American Transportation Consultants).

Commenters in Favor of Rule

    Three commenters (National Association of Railroad Passengers,
Advocates for Highway and Auto Safety, and National Railroad Passenger
Corporation (Amtrak)) strongly supported all the provisions of the
rule.

Comments by Petitioners

    The questions and issues raised by the five petitioners (Shell Oil
Products Company, Linden Bulk Transportation Company, Textile Chemical
Company, North American Transportation Consultants, Decker Transport
Company) requesting an extension of the comment period are addressed in
the ``Discussion of Petitions'' section of this preamble.

Proposal Too Broad

    A significant concern raised by many of the commenters either
directly through their comments or through their questions asking for
clarification was that the wording of the offenses to be covered is too
vague. For example, Decker Transport Company asked for clarification
regarding which Federal and/or local regulations constitute a violation
covered under this rule. It felt the language in the NPRM was too vague
and open to abuse. Similar comments were expressed by the other
commenters.
    Farmland Industries, the Truckload Carriers Association, and ATA
expressed concern about motor carriers being charged when drivers
violated railroad-highway grade crossing laws or regulations. Farmland
Industries stated that it would be unfair to apply penalties to motor
carriers when drivers violate company policy requiring them to comply
with railroad-highway grade crossing rules and regulations.

FHWA Response

    The FHWA agrees with the commenters that the language defining a
railroad-highway grade crossing violation needs to be more specific.
The final rule therefore lists six offenses under Sec. 383.51(e) that
pertain to a railroad-highway grade crossing. The FHWA believes that
this change will make the final rule more enforceable and more likely
to achieve the intended legislative effect.
    The FHWA does not agree that motor carriers are being treated
unfairly under this rule. Motor carriers are treated the same as under
the existing provisions of Sec. 383.37 that cover offenses for using a
disqualified driver, a driver with more than one license, or using a
driver while he or she has been ordered out of service. The key wording
in all of these offenses, including the new one for railroad-highway
grade crossings, is that the motor carrier must ``. . . knowingly
allow, require, permit, or authorize a driver to operate a CMV . . .''
A motor carrier is not guilty of a ``knowing'' violation simply because
one of its drivers violates a railroad-highway grade crossing law or
regulation. The penalty can only be imposed if it can be shown that the
motor carrier knew, or should have known, of the driver's violation
because it actually ordered or authorized him or her to ignore the
grade crossing laws or regulations, or because the motor carrier, after
learning of previous violations by drivers, failed to take action to
prevent them from happening again.

Abandoned Tracks

    Five commenters (Grammer Industries, Farmland Industries, E. Lowell
Lewis, Truckload Carriers Association, ATA) expressed concern about the
many abandoned railroad tracks around the country that are not marked
as such with a sign. A driver could be disqualified for not stopping at

[[Page 48107]]

the grade crossing of these abandoned tracks. The commenters want the
railroads or the Federal Railroad Administration to identify these
abandoned tracks with highway signs.

FHWA Response

    Under 49 CFR 392.10(b)(4), a railroad track is considered to be
abandoned only if it is so signed. This rule makes the failure to stop
at a grade crossing that is still considered to be active a CDL
disqualifying offense. While the FHWA agrees that abandoned tracks
should be so marked, the decision to declare tracks abandoned and erect
a sign declaring them abandoned is a process involving the railroads
and the States. This issue is outside of the scope of this rule.

Responsibilities of Railroads

    Three commenters (Farmland Industries, Federal Express, Owner
Operator Independent Drivers Association) expressed the concern that
many of the problems at grade crossings are the responsibility of the
railroads which should provide warning devices and better signing at
all active grade crossings.

FHWA Response

    This rule is only one part of a concerted effort to improve safety
at railroad-highway grade crossings. Other actions are being
implemented to provide better grade crossing safety through a
cooperative effort of the FHWA, Federal Railroad Administration (FRA),
National Highway Traffic Safety Administration, the railroads and
public interest groups.
    Just in the past five years, crashes have been reduced by 30
percent and fatalities by 33 percent through the closing of some at-
grade railroad-highway crossings, grade separation of rails and
highways, better engineering of highways, more effective signage,
warning devices that use the latest technology such as four way gates,
train-borne devices to provide audible and visual warning of the
train's approach and public education programs.

Serious Traffic Violations

    The Colorado Department of Public Safety and the Missouri
Department of Revenue stated that violations of railroad-highway grade
crossing laws and regulations should be included in the existing
category of serious traffic violations rather than creating a new
category of violations.
    E. A. Brown, a Florida police officer, stated that railroad-highway
safety grade crossing violations should be treated the same as other
serious traffic safety violations because minor crossing violations are
in fact less serious than a violation such as reckless driving.

FHWA Response

    Convictions for serious traffic violations such as speeding in
excess of 15 miles per hour over the posted speed limit, improper or
erratic traffic lane changes, or following the vehicle ahead too
closely only lead to a driver disqualification if two or more
convictions occur in separate incidents. The ICCTA specifically
requires disqualification upon a first conviction of a violation of
railroad-highway grade crossing safety laws or regulations.
    Grade crossing violations can cause death and injury on a large
scale. The agency has therefore established a separate category of
violations and sanctions that reflects the intent of Congress in the
ICCTA by requiring a driver disqualification on the first conviction.

Traffic Jams and Rear-End Collisions

    Grammer Industries stated that the growth of towns in the vicinity
of railroad-highway grade crossings has created engineering problems.
The commenter stated that when CMVs stop at a railroad-highway grade
crossing, they create traffic jams. Both Grammer Industries and
Farmland Industries felt that these vehicles, when stopped on the
highway, cause rear-end collisions. The Truckload Carriers Association
stated that slowing down or stopping at railroad-highway grade
crossings could significantly disrupt the flow of traffic and be
deadly.
    The Truckload Carriers Association, ATA, and Federal Express
Corporation support the elimination of a stopping requirement at all
actively-controlled grade crossings.
    The California Highway Patrol stated that requiring CMVs to stop or
slow down at railroad-highway grade crossings poses a greater safety
risk to the public.
    The Owner Operator Independent Drivers Association (OOIDA) stated
that the FHWA has failed to provide statistics on the number of rear-
end collisions at railroad-highway grade crossings that were due to
vehicles rear-ending CMVs that had stopped even though there was no
train present. The OOIDA also believes that this final rule will
increase the risk of rear-end collisions and gridlock because CMV
drivers will be stopping at every railroad-highway crossing to protect
their CDL.

FHWA Response

    The FHWA is not entertaining any changes to 49 CFR 392.10 and
392.11 in this rulemaking. The ICCTA and this rule only require the
States to impose sanctions and penalties for CMV operators convicted of
violations of railroad-highway grade crossing laws or regulations which
are at least as stringent as the requirements of this rulemaking.
    This rulemaking will not increase the number of rear-end collisions
since no changes are being made to the current railroad-highway grade
crossings requirements for CMV drivers. Whether stopping at a railroad-
highway grade crossing can be more of a safety problem than not
stopping, was addressed in more detail in the June 18, 1998, final
notice on ``Review of the Federal Motor Carrier Safety Regulations;
Regulatory Removals and Substantive Amendments'' (63 FR 33254).

Current Prohibitions Adequate

    The Colorado Department of Public Safety and the Missouri
Department of Revenue believe that the existing requirements in 49 CFR
392.10 and 392.11 adequately address the railroad-highway grade
crossing safety issue.
    The California Highway Patrol (CHP) opposes any new requirements
that would require the State of California to legislate stricter laws
and harsher penalties against drivers who violate railroad-highway
grade crossing laws and regulations and civil penalties against
employers. Motor carriers transporting passengers or placarded
hazardous materials are the only vehicles required to stop at railroad-
highway grade crossings. The CHP believes the hazardous materials
industry has the best safety record in California.
    The Wisconsin Department of Transportation states that its data
does not indicate that CMV drivers are over represented in crashes or
citations issued involving railroad-highway grade crossings.

FHWA Response

    The FHWA agrees that the existing Federal requirements in 49 CFR
392.10 and 392.11 adequately address the railroad-highway grade
crossing safety issue, but only from the standpoint of prohibitions and
their related fines; not sanctions and penalties. The minimum period of
disqualification for a driver and the maximum fine to be levied against
a motor carrier in this rule reflect FHWA's concern about the
potentially severe safety consequences, including loss of life, that
may result

[[Page 48108]]

from the violation of a railroad-highway grade crossing law or
regulation. The FHWA believes most States currently have laws and
regulations regarding violations at railroad-highway grade crossings by
any driver, commercial or non-commercial, but that State law may only
require fines. As is the case with other CDL disqualifying offenses,
the CDL driver should be held to a higher standard than other drivers
due to the potential for injuries and loss of life in a crash between a
CMV and a train. The FHWA acknowledges that there are far more
violations by non-CDL drivers at railroad-highway grade crossings, but
the severity of a crash, in injuries, fatalities, and property damage,
is far greater when a commercial vehicle is involved.

State Legislative Changes

    The Missouri Department of Revenue states that because the rule
does not follow the provisions of serious traffic violations, the State
must pass new legislation. The Wisconsin Department of Transportation
stated that this rule will require legislative and information system
changes.

FHWA Response

    The ICCTA requires disqualification upon a first conviction of a
violation of railroad-highway grade crossing safety laws or
regulations. For this reason, the FHWA cannot include these offenses
under the serious traffic violation category which requires two
convictions before a driver can be disqualified.
    As discussed in the ``Substantial Compliance'' section of the
preamble, the FHWA acknowledges that the complexity of revising State
legislation and establishing procedures to incorporate the new
requirements into existing systems will require time. The FHWA is
therefore allowing three years after the effective date of the rule for
the States to come into substantial compliance with these new
requirements.

Severity of Sanctions and Penalties

    The Owner Operator Independent Drivers Association strongly opposes
the rulemaking because it will not substantially improve highway
safety. The rule will have a substantial effect on small business
owners. Owner-operators may have to defend themselves against a $10,000
fine because they are ``employers'' as well as drivers. They also
stated that the penalties are too severe given the number or severity
of collisions between trains and CMVs. Only a conviction for ignoring a
railroad-highway safety grade crossing signal device should be
disqualifying.
    The Colorado Department of Public Safety stated that
disqualification should not include a conviction for stopping too close
to a railroad-highway grade crossing.
    The Truckload Carriers Association stated that drivers who violate
railroad-highway grade crossing laws or regulations after making a
``good faith'' effort to comply with such regulations should not be
penalized.
    The Florida Department of Highway Safety and Motor Vehicles stated
that the penalties are too severe. This commenter believes drivers
should only be subject to fines on a first offense, not a
disqualification. Drivers should be disqualified for a second
conviction.
    Mr. E. Lowell Lewis stated that fines and duration of driver
license disqualification are excessively high for a violation at an
unmarked abandoned railroad-highway grade crossing.
    Grammer Industries believes that the potential fines are out of
proportion to other serious traffic violations. They stated that road
rage is a more important problem and should be addressed instead of
railroad-highway grade crossing violations.
    E. A. Brown, a police officer, stated that the majority of
railroad-highway safety grade crossing violations do not endanger
safety.
    The Owner Operator Independent Drivers Association stated that the
combination of up to a $10,000 penalty as an employer for the first
conviction, and the loss of revenue for the length of the
disqualification as a driver, will put owner/operators out of business.
Further, because they are owner/operators, it will be a hardship for
them to be able to make a court appearance to defend themselves.
    The Colorado Department of Public Safety believes that
disqualification for disobeying a railroad-highway grade crossing
requirement would cause drivers to plea bargain down to a non-serious
offense.
    The Advocates for Highway and Auto Safety (AHAS) recommend that a
one year penalty be established for third and subsequent violations of
railroad-highway grade crossings because of the especially severe
nature of railroad-highway grade crossing violations. They also
recommended that the time limit for compiling two or more convictions
be increased from three to five years.

FHWA Response

    As stated previously, the minimum period of disqualification and
the maximum fine levied in this rule reflect the concern of the
Congress and the FHWA about the potentially severe safety consequences,
including loss of life, that may result from a violation of a railroad-
highway grade crossing law or regulation. As discussed later in the
Section Analysis under Sec. 383.51, Disqualification of Drivers, the
FHWA agrees with AHAS that the potentially severe consequences of this
violation warrant a one year disqualification period for a third or
subsequent conviction over a three year period.
    This final rule requires a penalty of not more than $10,000 to be
assessed against a motor carrier who is convicted of knowingly allowing
a driver to commit a railroad-highway safety grade crossing violation.
The rule allows for flexibility in assessing the penalty based on the
severity of the offense and the circumstances involved in the incident.
The FHWA believes that the issue of ``good faith effort'' and other
mitigating circumstances should be left to the discretion of the judge
or administrative hearing officer.

Changes to Current Regulations

    The ATA state that the FHWA should eliminate the prohibition
against changing gears while crossing railroad tracks. The ATA and
Federal Express Corporation believe that the Agency should require
States to change their railroad-highway grade crossing laws and
regulations to be in conformity with the Federal requirements.
Railroad-highway grade crossing regulations should be uniform for both
CMVs and non-CMVs.

FHWA Response

    All of the suggestions for changing current regulations related to
railroad-highway grade crossings are outside of the scope of this
rulemaking. The purpose of this rule is to implement the requirements
of section 403 of the ICCTA.
    If the commenters feel there is a need to change current
regulations, they should submit to the FHWA a formal petition for
rulemaking along with supporting documentation and justifications.

Substantial Compliance

    Section 403(c) of the ICCTA , codified at 49 U.S.C. 31311(a)(18),
adds to the list of conditions necessary to achieve substantial
compliance, the adoption and enforcement of FHWA sanctions and
penalties for violations of laws and regulations pertaining to
railroad-highway grade crossings. Substantial compliance is required to
avoid having apportioned Federal-aid highway funds withheld. The FHWA
understands the complexity of revising State legislation

[[Page 48109]]

and establishing procedures to incorporate the new requirements into
existing systems. The FHWA is therefore setting the deadline for
achieving substantial compliance with this 23rd requirement for State
participation in the CDL program as no later than three years after the
effective date of this rule.

Federal Enforcement

    While the States are being given up to 3 years to implement these
new disqualifying offenses, the FHWA has the authority, and will
continue to exercise its authority to subject drivers and motor
carriers operating in interstate commerce to the appropriate civil or
criminal penalties if they are found guilty of violating any of the
Federal prohibitions defined in 49 CFR 392.10 and 392.11.

Section Analysis

Section 383.21  Number of Drivers' Licenses

    Section 4011(b)(1) of the Transportation Equity Act for the 21st
Century [Pub. L. 105-178, 112 Stat. 107, 407, June 9, 1998, codified at
49 U.S.C. 31302] removed the exception in Sec. 383.21(b)(1) allowing a
driver to hold more than one driver's license during the 10-day period
beginning on the date the CDL is issued. This section is revised to
reflect this change and to remove the obsolete exception in
Sec. 383.21(b)(2) allowing more than one driver's license if a State
required it; that exception has been invalid since January 1, 1990.

Section 383.37  Employer Responsibilities

    Section 403 of the ICCTA prescribes a more stringent penalty for
employers who knowingly require or allow railroad-highway grade
crossing violations than the existing sanctions imposed on employers
using a driver while disqualified. Because there is no specific
prohibition in the current regulation to which the prescribed sanction
would apply, a provision is added to Sec. 383.37 implementing this
requirement.

Section 383.51  Disqualification of Drivers

    Section 403 of the ICCTA requires the Secretary to establish by
regulation, sanctions and penalties for drivers convicted of violating
railroad-highway grade crossing laws or regulations.
    While the ICCTA only refers in general to violations of laws and
regulations pertaining to railroad-highway grade crossings, the FHWA,
as explained earlier in this preamble, agrees with the commenters that
the violations should be more specific, in keeping with the
descriptions of other CDL major and serious traffic violations under 49
CFR 383.51. Six categories of violations are added to paragraph (e)(1)
of this section to provide more specificity to the violations.
    The ICCTA requires the penalty for a single violation to be not
less than a 60-day disqualification, but is silent on how to treat
subsequent convictions. Based on the precedents established for all
other types of violations which apply a longer penalty for subsequent
convictions, and the inherent authority to establish higher penalties
for the violations described, 49 CFR 383.51 is amended to provide an
increased period of disqualification for subsequent convictions.
    Compared to other sanctions imposed in the CMVSA, violations at
railroad-highway grade crossings rank higher than serious traffic
violations, which require no sanction for a first conviction and
disqualifications of not less than 60 days for the second conviction
and not less than 120 days for a third or subsequent conviction. The
FHWA initially believed a two tier sanctioning system with a minimum
disqualification period of 60 days for a first conviction and 120 days
for a second or subsequent conviction was a reasonable penalty
structure for convictions of railroad-highway grade crossing
violations. That was the proposal published in the NPRM. However, based
on the severity of the railroad-highway grade crossing crashes
involving commercial motor vehicles that have taken place in recent
months, including the crashes in Illinois and Texas, the FHWA believes
there is a need for a stronger penalty deterrent. As recommended by the
Advocates for Highway and Auto Safety and the Federal Railroad
Administration, the FHWA is revising the penalty structure to include a
one year penalty for third and subsequent convictions for violations of
railroad-highway grade crossing laws and regulations. The one year
disqualification for a third conviction will bring the penalties more
in line with the graduated penalty structure under 49 CFR 240.117 for
railroad engineers who fail to comply with requirements for the safe
operation of trains. These safety standards for railroad engineers are
comparable to commercial motor vehicle driver requirements, including
such offenses as failure to control a locomotive or train in accordance
with a signal indication that requires a complete stop before
proceeding, failure to adhere to speed limitations and occupying main
track without proper authority.
    The ICCTA is also silent regarding the time limit between first and
subsequent violations. Referring again to the sanctions required for
serious traffic violations in 49 U.S.C. 31310(e), which employ a three-
year period, a three-year period is also set for these violations. A
second conviction for a grade crossing violation in a CMV within a
three-year period will result in a disqualification of at least 120
days and a third or subsequent conviction within a three-year period
will result in a disqualification of at least one year.

Section 383.53  Penalties

    The ICCTA amendment to 49 U.S.C. 31310 specifically provides that
any motor carrier that knowingly allows, permits, authorizes, or
requires a driver to operate a CMV in violation of a law or regulation
pertaining to railroad-highway grade crossings must be subject to a
civil penalty of not more than $10,000. This reflects congressional
concern about the potentially disastrous consequences of illegally
crossing a railroad track. The FHWA has therefore added a new paragraph
(c) to the penalty provisions of 49 CFR 383.53 to incorporate this
sanction.

Section 384.223  Railroad-Highway Grade Crossing Violation

    As indicated in the ICCTA, the States are required to adopt and
enforce the sanctions and penalties relating to violations of railroad-
highway grade crossing laws or regulations codified in Secs. 383.37,
383.51, and 383.53. A new Sec. 384.223, Railroad-highway grade crossing
violation, is added to part 384 as the 23rd substantial compliance
requirement for State CDL programs. For State compliance purposes,
existing laws or regulations applicable to violation of railroad-
highway grade crossing restrictions, such as reckless driving or
driving to endanger, will be acceptable provided a conviction for these
offenses invokes at least the specified minimum disqualification
periods.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or a
significant regulation within the meaning of Department of
Transportation regulatory policies and procedures.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the

[[Page 48110]]

FHWA has evaluated the effects of this rule on small entities. Based on
the evaluation, the FHWA believes the actual imposition of these fines
and disqualifications will be required only infrequently. This is based
on the fact that the FHWA believes the overwhelming majority of motor
carriers, including small carriers, currently instruct their drivers to
comply with all safety related laws and regulations, including those
pertaining to railroad-highway grade crossings. Further, the FHWA
believes this final rule establishing driver disqualification and
employer civil penalties will serve as a further deterrent for drivers
and/or carriers who might otherwise have violated such laws or
regulations. Accordingly, the FHWA hereby certifies that this action
will not have a significant economic impact on a substantial number of
small entities.

Unfunded Mandates Reform Act of 1995 and Executive Order 12875
(Enhancing the Intergovernmental Partnership)

    This rule does not impose a Federal mandate resulting in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. (2
U.S.C. 1531 et seq.).
    Each of these final rule changes is a small incremental addition to
an existing process. Drivers are already being disqualified as a matter
of course when convicted of certain violations. This merely
standardizes the minimum disqualification time drivers must receive for
violating existing laws or regulations pertaining to railroad-highway
grade crossings.
    There is a potential one-time minor cost to States that need to
modify existing laws to incorporate these standardized railroad-highway
grade crossing provisions. The costs of being in substantial compliance
with the provisions in this final rule are part of an existing State
monitoring program, and therefore will have very little impact on
ongoing State operations.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environmental risk to health or safety that may
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise
have taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612 and it has been determined
that it will have significant implications for Federalism.
    The federalism implications of the CDL program were addressed in
detail in the rule which established the initial minimum standards (53
FR 27628, Thursday, July 21, 1988). A summary of the points covered in
that rule follows:
    (a) The Congress determined that minimum Federal standards were
required because medium and heavy trucks are involved in a
disproportionately large percentage of fatal accidents. The States were
carefully consulted in establishing the minimum standards adopted by
the FHWA.
    (b) The safety problem associated with CMVs is national in scope,
requiring a consistent and reciprocal approach to licensing, which
retained the basic role of the States in issuing licenses.
    (c) The standards adopted deliberately allowed maximum flexibility
to the States in implementation of this program.
    Thus, it is certified that the specifications contained in this
document have been assessed in light of the principles, criteria, and
requirements of the Federalism Executive Order, and they accord fully
with the letter and spirit of the President's Federalism initiative.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain information collection requirements
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520, that are not already approved for the CDL program and its
associated commercial driver's license information system (CDLIS).

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.)
and has determined that this action will not have any effect on the
quality of the environment.

Regulation Identification Number

    A regulation identification 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.

List of Subjects in 49 CFR Parts 383 and 384

    Commercial driver's license, Commercial motor vehicles, Motor
carriers, Motor vehicle safety, and Railroad-highway grade crossing.

    Issued on: August 25, 1999.
Gloria J. Jeff,
Federal Highway Deputy Administrator.

    In consideration of the foregoing, the FHWA hereby amends title 49,
Code of Federal Regulations, Chapter III, parts 383 and 384 as set
forth below.

PART 383--[AMENDED]

    1. Revise the authority citation for 49 CFR part 383 to read as
follows:

    Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.48.

    2. Revise Sec. 383.21 to read as follows:

Sec. 383.21  Number of drivers' licenses.

    No person who operates a commercial motor vehicle shall at any time
have more than one driver's license.
    3. Revise Sec. 383.37 to read as follows:

Sec. 383.37  Employer responsibilities.

    No employer may knowingly allow, require, permit, or authorize a
driver to operate a CMV in the United States:
    (a) During any period in which the driver has a CMV driver's
license suspended, revoked, or canceled by a State, has lost the right
to operate a CMV in a State, or has been disqualified from operating a
CMV;
    (b) During any period in which the driver has more than one CMV
driver's license;

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    (c) During any period in which the driver, or the CMV he or she is
driving, or the motor carrier operation, is subject to an out-of-
service order; or
    (d) In violation of a Federal, State, or local law or regulation
pertaining to railroad-highway grade crossings.
    4. Amend Sec. 383.51, to redesignate paragraph (e) as paragraph
(f), and to add a new paragraph (e) to read as follows:

Sec. 383.51.  Disqualification of drivers.

* * * * *
    (e) Disqualification for railroad-highway grade crossing
violation--
    (1) General rule. A driver who is convicted of operating a CMV in
violation of a Federal, State, or local law or regulation pertaining to
one of the following six offenses at a railroad-highway grade crossing
must be disqualified for the period of time specified in paragraph
(e)(2) of this section:
    (i) For drivers who are not required to always stop, failing to
slow down and check that the tracks are clear of an approaching train;
    (ii) For drivers who are not required to always stop, failing to
stop before reaching the crossing, if the tracks are not clear;
    (iii) For drivers who are always required to stop, failing to stop
before driving onto the crossing;
    (iv) For all drivers, failing to have sufficient space to drive
completely through the crossing without stopping;
    (v) For all drivers, failing to obey a traffic control device or
the directions of an enforcement official at the crossing;
    (vi) For all drivers, failing to negotiate a crossing because of
insufficient undercarriage clearance.
    (2) Duration of disqualification for railroad-highway grade
crossing violation.--(i) First violation. A driver must be disqualified
for not less than 60 days if the driver is convicted of a first
violation of a railroad-highway grade crossing violation.
    (ii) Second violation. A driver must be disqualified for not less
than 120 days if, during any three-year period, the driver is convicted
of a second railroad-highway grade crossing violation in separate
incidents.
    (iii) Third or subsequent violation. A driver must be disqualified
for not less than 1 year if, during any three-year period, the driver
is convicted of a third or subsequent railroad-highway grade crossing
violation in separate incidents.
* * * * *
    5. Amend Sec. 383.53 to add a new paragraph (c) to read as follows:

Sec. 383.53.  Penalties.

* * * * *
    (c) Special penalties pertaining to railroad-highway grade crossing
violations. An employer who is convicted of a violation of
Sec. 383.37(d) must be subject to a civil penalty of not more than
$10,000.

PART 384--[AMENDED]

    6. The authority citation for 49 CFR part 384 continues to read as
follows:

    Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.48.

    7. Add Sec. 384.223 to read as follows:

Sec. 384.223  Railroad-highway grade crossing violation.

    The State must have and enforce laws and/or regulations applicable
to CMV drivers and their employers, as defined in Sec. 383.5 of this
title, which meet the minimum requirements of Secs. 383.37(d),
383.51(e), and 383.53(c) of this title.

[FR Doc. 99-22900 Filed 9-1-99; 8:45 am]
BILLING CODE 4910-22-P