Highway-Rail Grade Crossing; Safe Clearance, 58915-58923 [2013-23375]
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Federal Register / Vol. 78, No. 186 / Wednesday, September 25, 2013 / Rules and Regulations
(b) How do I apply for a special
permit? * * *
(c) What information must be
contained in the application? * * *
(d) How does PHMSA handle special
permit applications? * * *
(e) Can a special permit be requested
on an emergency basis? * * *
(f) How do I apply for an emergency
special permit? * * *
(g) What must be contained in an
application for an emergency special
permit? * * *
(h) In what circumstances will
PHMSA revoke, suspend, or modify a
special permit? * * *
(i) Can a denial of a request for a
special permit or a revocation of an
existing special permit be appealed?
* * *
(j) Are documents related to an
application for a special permit
available for public inspection? * * *
(k) Am I subject to enforcement action
for non-compliance with the terms and
conditions of a special permit? Yes.
PHMSA inspects for compliance with
the terms and conditions of special
permits and if a probable violation is
identified, PHMSA will initiate one or
more of the enforcement actions under
subpart B of this part.
PART 192—TRANSPORTATION OF
NATURAL AND OTHER GAS BY
PIPELINE: MINIMUM FEDERAL
SAFETY STANDARDS
Authority: 49 U.S.C. 60102, 60104, 60108,
60109, 60110, 60113, 60116, 60118, and
60137; and 49 CFR 1.53.
46. In § 192.603, paragraph (c) is
revised to read as follows:
■
General provisions.
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(c) The Associate Administrator or the
State Agency that has submitted a
current certification under the pipeline
safety laws, (49 U.S.C. 60101 et seq.)
with respect to the pipeline facility
governed by an operator’s plans and
procedures may, after notice and
opportunity for hearing as provided in
49 CFR 190.206 or the relevant State
procedures, require the operator to
amend its plans and procedures as
necessary to provide a reasonable level
of safety.
PART 193—LIQUEFIED NATURAL GAS
FACILITIES: FEDERAL SAFETY
STANDARDS
47. The authority citation for Part 193
continues to read as follows:
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§ 193.2017
Plans and procedures.
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(b) The Associate Administrator or the
State Agency that has submitted a
current certification under section 5(a)
of the Natural Gas Pipeline Safety Act
with respect to the pipeline facility
governed by an operator’s plans and
procedures may, after notice and
opportunity for hearing as provided in
49 CFR 190.206 or the relevant State
procedures, require the operator to
amend its plans and procedures as
necessary to provide a reasonable level
of safety.
*
*
*
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PART 195—TRANSPORTATION OF
HAZARDOUS LIQUIDS BY PIPELINE
49. The authority citation for Part 195
continues to read as follows:
■
Authority: 49 U.S.C. 60102, 60104, 60108,
60109, 60116, 60118, and 60137; and 49 CFR
1.53.
50. In § 195.402, paragraph (b) is
revised to read as follows:
■
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45. The authority citation for Part 192
continues to read as follows:
■
48. In § 193.2017, paragraph (b) is
revised to read as follows:
■
§ 195.402 Procedural manual for
operations, maintenance, and emergencies.
■
§ 192.603
Authority: 49 U.S.C. 60102, 60103, 60104,
60108, 60109, 60110, 60113, 60118; and 49
CFR 1.53.
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(b) The Associate Administrator or the
State Agency that has submitted a
current certification under the pipeline
safety laws (49 U.S.C. 60101 et seq.)
with respect to the pipeline facility
governed by an operator’s plans and
procedures may, after notice and
opportunity for hearing as provided in
49 CFR 190.206 or the relevant State
procedures, require the operator to
amend its plans and procedures as
necessary to provide a reasonable level
of safety.
*
*
*
*
*
PART 199—DRUG AND ALCOHOL
TESTING
51. The authority citation for Part 199
continues to read as follows:
■
Authority: 49 U.S.C. 60102, 60104, 60108,
60117, and 60118; 49 CFR 1.53.
52. In § 199.101, paragraph (b) is
revised to read as follows:
■
§ 199.101
Anti-drug plan.
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(b) The Associate Administrator or the
State Agency that has submitted a
current certification under the pipeline
safety laws (49 U.S.C. 60101 et seq.)
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58915
with respect to the pipeline facility
governed by an operator’s plans and
procedures may, after notice and
opportunity for hearing as provided in
49 CFR 190.206 or the relevant State
procedures, require the operator to
amend its plans and procedures as
necessary to provide a reasonable level
of safety.
Issued in Washington, DC, on September
18, 2013, under authority delegated in 49
CFR Part 1.97(a).
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2013–23047 Filed 9–24–13; 8:45 am]
BILLING CODE 4910–60–P
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
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), and Federal Motor Carrier
Safety Administration (FMCSA), U.S.
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
FMCSA and PHMSA amend
the Federal Motor Carrier Safety
Regulations (FMCSRs) and Hazardous
Materials Regulations (HMRs),
respectively, to prohibit a driver of a
commercial motor vehicle or of a motor
vehicle transporting certain hazardous
materials or certain agents or toxins
(hereafter collectively referenced as
‘‘regulated motor vehicle’’) 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, as amended
by section 32509 of the Moving Ahead
for Progress in the 21st Century Act
(MAP–21). The intent of this rulemaking
is to reduce highway–rail grade crossing
crashes.
DATES: This rule is effective October 25,
2013.
SUMMARY:
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Federal Register / Vol. 78, No. 186 / Wednesday, September 25, 2013 / Rules and Regulations
You may review the final
rule, the technical supporting
documents, economic analysis,
environmental assessment, and public
comments for this proceeding identified
by Federal Docket Management System
Numbers PHMSA–2010–0319 (HM–255)
and FMCSA–2006–25660.
Docket: For access to the docket to
read background documents or
comments received, go to https://
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.
ADDRESSES:
At
FMCSA: Mr. Thomas Yager, Driver and
Carrier Operations, (202) 366–4325 or
MCPSD@dot.gov, Federal Motor Carrier
Safety Administration, U.S. Department
of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001. 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 or phmsa.hmhazmatsafety@
dot.gov, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue SE., Washington,
DC 20590–0001.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Summary of the Final
Rule
This action is in response to section
112 of the Hazardous Materials
Transportation Authorization Act of
1994 (HMTAA), as amended by section
32509 of MAP–21. The intent of this
rulemaking is to reduce highway–rail
grade crossing crashes. FMCSA and
PHMSA implement the statutory
mandate enacted in section 112 of the
HMTAA, as amended, by changing the
FMCSRs and HMRs, respectively, to
prohibit drivers of regulated motor
vehicles from entering onto a highway–
rail grade crossing unless there is
sufficient space to drive completely
through the grade crossing without
stopping. The Agencies published the
notice of proposed rulemaking (NPRM)
for this final rule on January 28, 2011
(76 FR 5120), which also included a
history of actions from 1998 through
2006 that led to the 2011 NPRM.
B. Costs and Benefits
As explained in section VI. Regulatory
Analyses below, FMCSA and PHMSA
expect 2.62 fewer crashes per year,
when all States adopt rules compatible
with this Federal rule,1 and 0.3 fewer
train derailments.2
FMCSA and PHMSA estimate the
total annual benefits from crashes
avoided to be approximately $946,000.
This consists of $473,000 in reduced
injuries, $1,800 in reduced hazardous
material spills, $33,000 in reduced
highway property damage, and $438,000
in reduced costs for train derailments.
Total implementation costs per year are
estimated to be $302,300 in the first
year, based on the added costs to State
enforcement agencies of administrative,
enforcement, or training activities. The
additional costs for driver training
should be small as the training would
occur as a modification of emphasis in
existing railroad grade crossing training
curricula. Railroad grade crossing
training curricula for drivers would
include training to comply with eight
FMCSRs related to the safe operation of
regulated motor vehicles at railroad
grade crossings and penalties for noncompliance with these railroad grade
crossing safe operation rules. In
addition, drivers who operate in States
with existing laws similar to the
regulations in this final rule will be
familiar with the requirements. The
costs are projected to be about $11,200
in each of the 27 states (including the
District of Columbia) that do not have
an existing law or regulation similar to
the requirements in the final rule. Thus,
the annual net benefits from
implementation of this final rule in the
first year should be about $644,000. In
subsequent years, there would be no
costs, thus, $946,000 would be saved in
subsequent years.
Table ES–1 displays the 10–year
average annual and discounted net costs
and benefits of the statute that we are
implementing in this final rule.3
TABLE ES–1—TOTAL ESTIMATED 10-YEAR COSTS AND BENEFITS FOR IMPLEMENTING THE STATUTE MANDATING THE
FINAL GRADE CROSSING STORAGE-SPACE RULE
[2013 dollars, in thousands, rounded]
First year
impact
Annual impact
(years 2–10)
10-year total
10-year
(Discounted at
3
percent) *
10-year
(Discounted at
7
percent) *
Benefits ................................................................................
Costs ....................................................................................
$946
302
$946
0
$9,460
302
$8,312
265
$7,109
227
Net Benefits ..................................................................
644
946
9,158
8,047
6,882
* Present values of 10–year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4, Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.
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II. Background and Legal Basis for the
Rulemaking
Section 112 of the Hazardous
Materials Transportation Authorization
Act of 1994 (HMTAA) [Pub. L. 103–311,
1 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.
2 14 derailments/122 grade crossing incidents x
2.62 incidents prevented equals 0.3 fewer train
derailments.
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Title I, 108 Stat. 1673, 1676, August 26,
1994, as amended by section 32509 of
the Moving Ahead for Progress in the
21st Century Act (MAP–21), Pub. L.
112–141, 126 Stat. 405, 805, July 6,
2012] provides as follows:
3 Note that the numbers for the 10-year costs and
the discount rates differ from what was presented
in the NPRM’s RIA due to a discovery of a minor
mathematical error, the updating to current year
costs with the new estimated average economic
value of a statistical life for injury crashes (VSL),
and the removal of annual fatality benefits, because
zero fatal crashes were found in the analysis period
of 1998–2005. The estimated mean VSL is derived
from the DOT memorandum, ‘‘Treatment of the
Economic Value of a Statistical Life in
Departmental Analyses,’’ February 28, 2013. See
https://www.dot.gov/sites/dot.dev/files/docs/
VSL%20Guidance%202013.pdf.
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Sec. 112 Grade Crossing Safety.
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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 311 of such title (relating
to commercial motor vehicle 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.
The report by the Senate Committee
on Commerce, Science, and
Transportation states that section 112 is
intended to:
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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 number of fatalities resulting from such
accidents often is increased because of the
presence of hazardous materials. . . . [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.
S. Rep. No. 103–217, at 11 (December 9,
1993), reprinted in 1994 U.S.C.C.A.N.
1763, 1773). In sum, section 112
specifically directs DOT to prohibit
drivers of motor vehicles subject to
Federal hazmat law and the HMRs
issued thereunder and the commercial
motor vehicle operators subject to 49
U.S.C. chapter 311 and the FMCSRs
issued thereunder from driving ‘‘onto a
highway–rail grade crossing without
having sufficient space to drive
completely through the crossing without
stopping.’’ PHMSA and FMCSA are
carrying out this statutory mandate in
this final rule.
With respect to section 112(1),
PHMSA has been delegated the
authority in Federal hazardous material
transportation law (Federal hazmat law),
chapter 51 of Title 49 U.S.C., to
‘‘designate material . . . or a group or
class of material as hazardous when the
Secretary determines that transporting
the material in commerce in a particular
amount and form may pose an
unreasonable risk to health and safety or
property’’ and to ‘‘prescribe regulations
for the safe transportation, including
security, of hazardous material in
intrastate, interstate, and foreign
commerce’’ which apply to a person
who ‘‘transports hazardous material in
commerce.’’ 49 U.S.C. 5103(a), (b)(1);
see 49 CFR 1.97(b)(2).
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With respect to section 112(2),
FMCSA has been delegated authority
under the Motor Carrier Safety Act of
1984 (Pub. L. 98–554, Title II, 98 Stat.
2832, October 30, 1984), as amended, to
‘‘prescribe regulations on commercial
motor vehicle safety’’ in order to ensure
that ‘‘commercial motor vehicles are
. . . operated safely.’’ See 49 U.S.C.
31136(a)(1); 4 49 CFR 1.87(f). Other
factors under 49 U.S.C. 31136(a)(1)
(commercial motor vehicle
maintenance, equipment, and loading),
and factors under section 31136(a)(2)
(responsibilities on drivers not to impair
safe commercial motor vehicle
operation) and (3) (physical condition of
drivers enables safe commercial motor
vehicle operation) are not germane to
this rulemaking. Section 31136(a)(4)
(commercial motor vehicle operation
does not have deleterious effect on
driver’s physical condition) is only
indirectly related in that this rule will
protect drivers from certain accidents/
crashes. Finally, given the minimal
distances and time required to avoid
prohibited rail grade crossings, the lack
of opportunity for motor carriers,
shippers, receivers, and transportation
intermediaries to communicate timely
with drivers regarding decisions to
cross, and the obvious personal safety
risk to the commercial motor vehicle
operator of attempting to cross where
the is not sufficient space, the Agency
considers any risk of driver coercion
under 49 U.S.C. 31136(a)(5)
(commercial motor vehicle operator not
to be coerced by motor carrier, shipper,
receiver, or transportation intermediary
into operating commercial motor
vehicle in violation of certain
regulations) in connection with this
rulemaking to be negligible.
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III. History
PHMSA and FMCSA published the
NPRM for this final rule on January 28,
2011 (76 FR 5120). That notice included
a history of FMCSA’s and its
predecessor’s actions from 1998 through
2006 that led to the 2011 NPRM. The
2011 NPRM provides a discussion of the
history of this proceeding, including the
survey of State statutes on grade
crossings laws, grade crossing safety
outreach activities, and the 2006 public
meeting that provided interested parties
an opportunity to express their views
before issuance of the January 28, 2011
NPRM.
Since publication of the NPRM,
section 112(2) was amended in MAP–21
to correct the statutory reference from
chapter 315 to chapter 311
(‘‘commercial motor vehicle safety’’) of
Title 49, United States Code. This
clarifies that the authority for FMCSA’s
final rule is the direction to ‘‘prescribe
regulations on commercial motor
vehicle safety’’ in section 31136.
Accordingly, with respect to the final
rule issued by FMCSA, the definition of
‘‘commercial motor vehicle’’ in 49
U.S.C. 31132(1) and 49 CFR 390.5
applies to the prohibition being adopted
in 49 CFR 392.12.5
In the NPRM, PHMSA proposed to
add a new paragraph 49 CFR 177.804(b)
to the HMR, making the prohibition in
49 CFR 392.12 applicable to drivers of
motor vehicles transporting a quantity
of hazardous materials requiring
placarding under subpart F of 49 CFR
part 172 or a material listed as select
agent or toxin listed in 42 CFR part 73.
As discussed, this would make the
prohibition against driving onto a
highway-rail grade crossing without
having sufficient space to drive
completely through the crossing without
stopping applicable to ‘‘drivers of motor
vehicles of any size that are used to
transport [these materials].
Additionally, it includes drivers
engaged in intrastate or interstate
commerce.’’ 76 FR at 5122; see also id.
at 5123–24.
However, 49 CFR 177.804(b) is no
longer available, because in a final rule
published on February 28, 2011,
PHMSA (in coordination with FMCSA)
adopted a new § 177.804(b) providing
that ‘‘a person transporting a quantity of
hazardous materials requiring
4 For purposes of section 31136, ‘‘‘commercial
motor vehicle’ means a self-propelled or towed
vehicle used on the highways in interstate
commerce to transport passengers or property, if the
vehicle has a gross vehicle weight rating or gross
vehicle weight of at least 10,001 pounds, whichever
is greater; is designed or used to transport more
than 8 passengers (including the driver) for
compensation; is designed or used to transport
more than 15 passengers, including the driver, and
is not used to transport passengers for
compensation; or is used in transporting material
found by the Secretary of Transportation to be
hazardous materials under section 5103 of this title
and transported in a quantity requiring placarding
under regulations prescribed by the Secretary under
section 5103.
49 U.S.C. 31132(1); see also 49 CFR 390.5.
5 FMCSA acknowledges a drafting error in the
NPRM resulting in an inconsistency between the
preamble and the proposed regulatory text. Whereas
the preamble addressed FMCSA’s authority over
‘‘motor carrier[s]’’ and ‘‘motor private carrier[s],’’
terms used in chapter 315 of Title 49, the regulatory
text in proposed 49 CFR 392.12 referenced
‘‘commercial motor vehicle[s],’’ as defined 49 CFR
390.5, and consistent with chapter 311 of Title 49
and related provisions in the FMCSRs, issued under
the authority of § 31136. See, e.g. 49 CFR 392.11
(Railroad grade crossings; slowing down required).
However, none of the commenters addressed that
anomaly. The amendments to section 112 of the
HMTAA by MAP–21 ratified the reference to
‘‘commercial motor vehicle’’ in 49 CFR 392.12 as
proposed in the NPRM and adopted in this final
rule.
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placarding under 49 CFR part 172 or
any quantity of a material listed as a
select agent or toxin in 42 CFR part 73
may not engage in, allow, or require
texting while driving.’’ 76 FR 10771,
10778. PHMSA (also in coordination
with FMCSA) adopted a new
§ 177.804(c) on December 2, 2011,
providing that ‘‘a person transporting a
quantity of hazardous materials
requiring placarding under Part 172 [of
49 CFR] or any quantity of a material
listed as a select agent or toxin in 42
CFR part 73 may not engage in, allow,
or require use of a hand-held mobile
telephone while driving.’’ 76 FR 75470,
75485–6.
Therefore, as all the recent joint
PHMSA and FMCSA rules have been
applicable to ‘‘a person transporting a
quantity of hazardous materials
requiring placarding under 49 CFR part
172 or any quantity of a material listed
as a select agent or toxin in 42 CFR part
73,’’ PHMSA is consolidating this final
rule with the anti-texting and antimobile-telephone rules by creating a
new introductory phrase at 49 CFR
177.804(b) that reads as set forth in the
regulatory text of this rule; and adopting
three subparagraphs: (b)(1) the
substance of the prohibition proposed in
the NPRM; (b)(2) the prohibition against
texting while driving; and (b)(3) the
prohibition against using a hand-held
mobile telephone while driving. The
cross-reference to the definition of
‘‘hazardous materials’’ in 49 CFR 383.5
is deleted because it is not needed. As
in the current provisions against texting
and hand-held mobile telephone use
previously located in 49 CFR 177.804(b)
and (c), these categories appear to be the
materials with which the Senate Report
had concern in stating that the ‘‘number
of fatalities resulting from [highway-rail
grade crossing] accidents often is
increased because of the presence of
hazardous materials.’’ 1994
U.S.C.C.A.N. at 1773.
IV. Comments on the Proposed Rule
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Overview of Comments
FMCSA and PHMSA received 16
comments to the jointly issued NPRM.
Comments were received from two truck
drivers, four private individuals, and
the following industry associations,
State agencies, and advocacy groups:
Association of American Railroads (AAR)
American Trucking Associations, Inc. (ATA)
National Association of Chemical
Distributors (NACD)
National Tank Truck Carriers, Inc. (NTTC)
Owner Operator Independent Drivers
Association, Inc. (OOIDA)
California Public Utilities Commission
(CPUC)
Nebraska Department of Roads (NEDR)
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North Carolina Department of Transportation
(NCDOT)
Commercial Vehicle Safety Alliance (CVSA)
Advocates for Highway and Auto Safety
(Advocates).
A private individual, the AAR, and
the NCDOT fully support the proposal.
The CVSA and the CPUC support the
proposal, but believe it will be difficult
to enforce.
Other comments and responsive
considerations are as follows.
Require Others To Mark Crossings
The two truck drivers, ATA, NACD,
NTTC, and Advocates recommend that
FMCSA and PHMSA require State and
local jurisdictions to specially mark and
provide signs at the 21,208 grade
crossings that the proposal identified as
likely having limited clear storage
distances to accommodate commercial
motor vehicles.
Response. As FMCSA and PHMSA
indicated in the NPRM,
recommendations to require States and
local jurisdictions have been made
previously. The Agencies have a clear
mandate from Congress to prohibit a
driver of a regulated motor vehicle from
driving the vehicle onto a highway–rail
grade crossing without having sufficient
space to drive completely through the
crossing without stopping. FMCSA and
PHMSA lack authority to require the
States and local governments to install
markings and signage as suggested.
Further, as discussed in the NPRM,
Federal Highway Administration
(FHWA) has funding available annually
under the Highway Safety Improvement
Program (HSIP) 6 for a variety of
highway safety improvement projects.
Eligible projects include (1)
construction and improvement of a
railway-highway grade crossing safety
feature, including the installation of
protection devices; (2) installation,
replacement, and other improvements of
highway signage and pavement
markings or projects to maintain
minimum levels of retroreflectivity that
address a highway safety problem
consistent with a State strategic
highway safety plan; and (3) installation
of traffic control or other warning
devices at locations with high crash
potential.
Also, FHWA has funding available
under the Railway-Highway Crossings
Program (23 U.S.C. 130) for the
elimination of hazards at grade
crossings. FMCSA and PHMSA have
brought commenters’ suggestions to the
6 See 23 U.S.C. 104(b)(3) (‘‘Highway Safety
Improvement Program’’). Improvements qualify as
‘‘highway safety improvement project[s]’’ under 23
U.S.C. 148(a). See also 23 CFR part 924, Highway
Safety Improvement Program.
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attention of FHWA. We noted in the
NPRM 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.
Logistical Challenges
In its comments, ATA noted that there
are logistical challenges in
implementing and enforcing the rule.
OOIDA noted that the Agencies
erroneously assumed drivers are aware
of crossings consisting of inadequate
storage space and that alternative routes
exist.
Response. While we acknowledge
commenters’ concerns, FMCSA and
PHMSA do not believe the logistical
challenges warrant a further delay in
issuing the rule. The rule places upon
drivers the responsibility to approach
grade crossings with caution and to
avoid going through the crossing unless
there is enough room to completely
clear the tracks without stopping.
Admittedly, this may be difficult
without knowing in advance all the
crossings that may be along the route,
the space around those crossings, and
where there are traffic control devices
and intersections that could result in a
driver being forced to stop unexpectedly
before clearing the track. The Agencies
encourage enforcement discretion in
those circumstances. However, the
statutory mandate is clear and the
Agencies do not have discretion
whether to issue the rule, as drafted.
The Agencies note that motor carriers
are required by §§ 397.67 and 397.101 to
plan routes for certain hazardous
material shipments and create a written
route plan document for the driver. To
the extent practicable, this mandatory
planning should include preparation for
grade crossings.
In addition, the Agencies remind all
those involved with the arrangement for
transportation services that the National
Transportation Safety Board (NTSB) has
found situations where shippers and
receivers often know of the logistical
and physical challenges truck drivers
would face in getting to their loading
and delivery locations, yet fail to
communicate those challenges to the
carrier and driver.7 Therefore, motor
7 National Transportation Safety Board. 2002.
Collision Between Amtrak Train 97 and Molnar
Worldwide Heavy Haul Company Tractor-Trailer
Combination Vehicle at Highway-Rail Grade
Crossing in Intercession City, Florida, on November
17, 2000, Highway Accident Summary Report.
NTSB/HAR–02/02. Washington, DC. The NTSB
determined ‘‘that the probable cause of the
November 2000 collision of Amtrak train 97 with
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carriers and brokers should ask shippers
and receivers about any logistical or
physical challenges that might exist
near, or on the roads leading to, loading
and delivery locations. The Agencies
recognize that avoidance of problematic
grade crossings will not always be
practicable. However, in many cases,
industry will have opportunities to
effectively address this issue.
TKELLEY on DSK3SPTVN1PROD with RULES
Access to Grade Crossing Information
OOIDA noted that maps, global
positioning systems (GPS), and internetgenerated directions often do not
include grade crossing information, let
alone storage space information. ATA
suggested that motor carriers are more
frequently using GPS and other
guidance technologies to plot routes.
Because these technologies can
specifically target certain locations if
those locations have been built into the
technology’s databases, ATA suggested
the Agencies share their data reflecting
the locations of these grade crossings
with GPS device manufacturers. The
Agencies should encourage
manufacturers to incorporate these
points into their products so that grade
crossings can be displayed and detoured
around when necessary.
Response. The Agencies agree that
data about the locations of potentially
problematic grade crossings should be
made available to the industry and GPS
navigation system service providers,
whenever possible. The Agencies
worked with the John A. Volpe National
Transportation Systems Center (Volpe)
to conduct a variety of supplemental
analyses which augment the Federal
Railroad Administration (FRA) Grade
Crossing Inventory System (GCIS) data
that is available to the public. The GCIS
served as the initial basis for
determining the set of highway-rail
grade crossings at which insufficient
clear storage distance may be a concern.
Volpe supplemented data from the GCIS
with grade crossing latitude and
longitude coordinate information
available through the FRA’s Office of
Policy and Program Development.8
In June 2013, FRA released a mobile
phone application (app) for Apple brand
iPhoneTM and iPadTM users. The Rail
the tractor-combination vehicle was the failure of
the Kissimmee Utility Authority, its construction
contractors and subcontractors, and the motor
carrier to provide for the safe passage of the load
over the grade crossing.’’ https://www.ntsb.gov/
doclib/reports/2002/HAR0202.pdf.
8 Proprietary digital road network data files were
also used and analyzed for potential storage space
issues on the basis of geographic information
system (GIS) techniques described in more detail in
the docketed study. The procedures the Agencies
used to create the dataset are fully explained in the
technical supporting document.
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Crossing Locator mobile app provides
users with access to grade crossing
inventory information and accident data
from the GCIS database. The application
allows users to: locate crossings by
USDOT Crossing ID, address or geolocation; access inventory records
submitted by states and railroads; and
view accident history. Users can also
select from multiple base map features
to see the crossing location, expand or
narrow the buffer radius of a location,
or get detailed information about a
specific crossing. The inventory record
for a public crossing will provide
information about the presence of a
nearby intersection as follows: less than
75 feet, 75 to 200 feet, and 200 to 500
feet and if the intersection has a traffic
signal. Although this app will not
provide complete information to ensure
compliance with the rule, it will assist
drivers in more strategically planning
their routes. FMCSA and PHMSA
remind regulated vehicle drivers of their
duty to follow both § 392.82, prohibiting
a driver from using a hand-held mobile
telephone while driving, and current
§ 177.804(c), being reorganized and
renumbered as § 177.804(b)(3) in this
final rule, prohibiting certain intrastate
HM drivers from using a hand-held
mobile telephone while driving.
Industry and GPS navigation system
service providers can now use the Rail
Crossing Locator mobile app to plot
routes to comply with this final rule.
Exception When No Reasonable
Alternative Routes Are Available
The Nebraska Department of Roads
and OOIDA suggested the rule should
include an exception to allow for
situations where there is no reasonable
alternate route available. They argue
that in rural States and industrial areas
there are many crossings where no
reasonable detour route exists. Nebraska
also argued that the potential cost to
implement the rule in Nebraska would
be an unfunded mandate.
Response. As indicated above, in
many situations, communications
among shippers, receivers, freight
forwarders, brokers, and motor carriers
about issues in the vicinity of pick-up
and drop-off points that may make it
difficult for large trucks, especially
combination vehicles, may help to
address this issue. However, the
Agencies acknowledge alternative
routes may not be available. In certain
circumstances, the railroad could be
brought into the planning conversation
with regard to the train schedules as the
specialized equipment hauling industry
does regularly and as the NTSB
recommended in its 2002 report about
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58919
the November 17, 2000, crash in
Intercession City, FL.9
Consistency With Executive Order
13563
Citing Executive Order 13563,
‘‘Improving Regulation and Regulatory
Review,’’ which President Obama
issued in January 2011, a commenter
urged the withdrawal of the NPRM.
Response. The final rule is required
by statute and nothing in the Executive
Order suggests that the Agency should
delay implementation of statutory
provisions for which the options for
implementation are as limited as the
1994 provision implemented in today’s
final rule. The rule will reduce
regulated motor vehicle–train crashes,
while having relatively small impacts
on business productivity.
Intrastate Transportation of Hazardous
Materials
An anonymous commenter stated that
‘‘the proposed rule is a direct attack on
the sovereignty of the several states’’ on
the alleged ground that the Commerce
Clause in Article I, Section 8 of the U.S.
Constitution authorizes Congress only
‘‘[t]o regulate Commerce with foreign
nations, and among the several States,
and with the Indian Tribes.’’
Response: In United States v. Lopez,
514 U.S. 549, 558–559 (1995), and
United States v. Morrison, 529 U.S. 598,
608–609 (2000), the Supreme Court
observed that ‘‘modern Commerce
Clause jurisprudence’’ has ‘‘identified
three broad categories of activity that
Congress may regulate under its
commerce power * * *
• ‘‘First, Congress may regulate the
use of the channels of interstate
commerce . . .
• ‘‘Second, Congress is empowered to
regulate and protect the
instrumentalities of interstate
commerce, or persons or things in
interstate commerce, even though the
threat may come only from intrastate
activities . . .
• ‘‘Finally, Congress’ commerce
authority includes the power to regulate
those activities having a substantial
relation to interstate commerce, . . .
9 National Transportation Safety Board. 2002.
Collision Between Amtrak Train 97 and Molnar
Worldwide Heavy Haul Company Tractor-Trailer
Combination Vehicle at Highway-Rail Grade
Crossing in Intercession City, Florida, on November
17, 2000, Highway Accident Summary Report.
NTSB/HAR–02/02. Washington, DC. The NTSB
determined ‘‘that the probable cause of the
November 2000 collision of Amtrak train 97 with
the tractor-combination vehicle was the failure of
the Kissimmee Utility Authority, its construction
contractors and subcontractors, and the motor
carrier to provide for the safe passage of the load
over the grade crossing.’’ https://www.ntsb.gov/
doclib/reports/2002/HAR0202.pdf.
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Federal Register / Vol. 78, No. 186 / Wednesday, September 25, 2013 / Rules and Regulations
i.e., those activities that substantially
affect interstate commerce.’’ (internal
citations omitted).
Accordingly, there is no doubt that
Congress is empowered to regulate
‘‘activities that substantially affect
interstate commerce.’’ Congress has
explicitly done this by providing that
the purpose of the Federal hazardous
material transportation law ‘‘is to
protect against the risks to life, property,
and the environment that are inherent
in the transportation of hazardous
material in intrastate, interstate, and
foreign commerce,’’ 49 U.S.C. 5101, and
defining ‘‘commerce’’ to include ‘‘trade
or transportation in the jurisdiction of
the United States . . . that affects trade
or transportation between a place in a
State and a place outside of the State.’’
49 U.S.C. 5102(1).10
In the Lopez and Morrison cases, the
Supreme Court noted that, ‘‘[w]here
economic activity substantially affects
interstate commerce, legislation
regulating that activity will be
sustained.’’ 514 U.S. at 560, 529 U.S. at
610. Here, the transportation of
hazardous materials in commerce
directly involves an economic activity,
and the safety of intrastate
transportation of hazardous materials
has the potential of a substantial effect
on interstate transportation of both
hazardous and non-hazardous materials.
Indeed, a crash at a highway-rail grade
crossing involving any motor vehicle
transporting hazardous materials
necessarily has a direct effect upon the
train involved in that crash, and that
grade crossing is part of the national
railroad system. Moreover, a grade
crossing crash may result in injuries and
fatalities to members of the train crew
as well as to the motor vehicle operator,
his or her passengers, and other persons
in the vicinity of the crash.
For these reasons, we disagree that the
prohibition adopted in this final rule is
in violation of the Commerce Clause of
the U.S. Constitution.
TKELLEY on DSK3SPTVN1PROD with RULES
Expand Applicability to All Vehicles
A commenter suggested FMCSA and
PHMSA should expand the applicability
10 As enacted in 1975, the Hazardous Material
Transportation Act declared that it was ‘‘the policy
of Congress in this chapter to improve the
regulatory and enforcement authority of the
Secretary of Transportation to protect the Nation
adequately against the risks to life and property
which are inherent in the transportation of
hazardous material in commerce.’’ Public Law 93–
633, Title I, sec. 102, 88 Stat. 2156 (Jan. 3, 1975).
In the same Act, ‘‘commerce’’ was defined to mean
‘‘trade, traffic, commerce, or transportation, within
the jurisdiction of the United States, (A) between
a place in a State and any place outside of such
State, or (B) which affects trade, traffic, commerce,
or transportation described in clause (A).’’ Id., sec.
103(1).
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of this final rule to ‘‘all vehicles’’ and
‘‘not just Commercial vehicles’’ that
cross highway-rail grade crossings. She
stated that this is a dangerous problem
for all traffic as she lives near a grade
crossing and sees vehicles trapped on
the tracks regularly.
Response. As discussed above,
PHMSA has authority to prescribe
regulations for the transportation of
hazardous material ‘‘in intrastate,
interstate, and foreign commerce.’’ 49
U.S.C. 5103(b)(1). For this reason, the
HMRs do not apply to ‘‘[t]ransportation
of a hazardous material by an individual
for non-commercial purposes in a
private motor vehicle.’’ 49 CFR
171.1(d)(6). Similarly, FMCSA has
authority to ‘‘prescribe regulations on
commercial motor vehicle safety.’’ 49
U.S.C. 31136(a). But neither Agency has
statutory authority to regulate noncommercial vehicles, i.e., vehicles not
transporting persons or property in
commerce. Accordingly, in HMTAA
section 112, Congress directed DOT to
prohibit the driver of ‘‘a motor vehicle
transporting hazardous materials in
commerce’’ or ‘‘any commercial motor
vehicle’’ from entering a highway-rail
grade crossing when there was not
‘‘sufficient space to drive completely
through the crossing without stopping.’’
(emphasis supplied). This final rule
carries out that mandate without going
beyond the statutory authority of the
two Agencies.
V. The Final Rule
49 CFR 392.12
This final rule implements the
statutory mandate enacted in section
112 of the HMTAA, as amended. The
rule prohibits regulated motor vehicles
from using certain grade crossings.
To proceed through a grade crossing
with inadequate storage distance, a
driver of a regulated motor vehicle will
have to either ignore the traffic control
device or comply with the traffic control
device but violate the rule by driving
onto the grade crossing without having
sufficient space to drive completely
through the crossing without stopping.
As discussed earlier, the shipper,
receiver, broker, and motor carrier
should communicate about problematic
routes in advance to avoid placing
drivers in such untenable positions by
re-routing standard-sized regulated
motor vehicles around such grade
crossings, using smaller regulated motor
vehicles at the crossings, or ensuring
that the railroad company is informed
well ahead of the planned crossing time
and is given an opportunity to inform
train crews and flagmen. Also, as
discussed earlier, FRA’s Rail Crossing
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Locator mobile app will provide access
to grade crossing inventory information
that will assist drivers in more
strategically planning their routes to
avoid problematic grade crossings.
49 CFR 177.804
To ensure that the statutory language
of section 112, as amended, applies to
both interstate and intrastate motor
carriers transporting hazardous
materials, PHMSA revises 49 CFR
177.804. PHMSA has revised paragraph
(b) by creating a new introductory
phrase as set forth in the regulatory text
of this rule. New paragraph (b)(1)
requires the driver of a motor vehicle
transporting this type and quantity of
hazardous materials to comply with the
safe clearance requirements for
highway–rail crossings in 49 CFR
392.12. As such, motor carriers and
drivers who engage in the transportation
of covered materials must comply with
the safe clearance requirements in
§ 392.12 of the FMCSRs. Current
paragraph (b) has become paragraph
(b)(2), and current paragraph (c) has
become paragraph (b)(3).
VI. Regulatory Analyses
Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory 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, as
supplemented by Executive Order
13563, issued January 18, 2011 (76 FR
3821). FMCSA and PHMSA expect the
final rule will have minimal costs and
generate minimal public interest. Of the
16 comments submitted to the January
28, 2011 NPRM, none provided data or
information that would suggest the
economic impact would meet or exceed
the threshold for the Executive Order.
Costs and Benefits of Rule
Implementation
The Agencies are required by statute
to implement a rule prohibiting drivers
of regulated motor vehicles from
entering a highway-rail grade crossing
unless there is sufficient space to clear
the crossing completely without
stopping. The data available to FMCSA
indicate that those 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 crash rate
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differences, the Agencies believe the
differential is large enough to suggest
that such rules have safety benefits. The
number of States which have
voluntarily adopted storage-space rules
also suggests that the costs of
implementing the requirements have
not proven to be an issue with the motor
carrier industry. Based on the safety
impacts seen in the States that have
adopted requirements similar to those
addressed in this rulemaking, FMCSA
and PHMSA believe the rule will
provide a cost-beneficial enhancement
to safety.
In the cost and benefit discussions
that follow, the Agencies consider the
costs and benefits applicable to the total
population of carriers affected by this
rule. Because the final rule does not
mandate specific changes in carrier
operations, driver training, or grade
crossing infrastructure enhancements
and no specific comments were received
providing any data to change the
Agencies’ analyses, FMCSA and
PHMSA conclude that the cost impacts
will not be significant. Because a
substantial number of States already
have in place storage-space rules,
drivers of regulated motor vehicles
operating in or through those States
should have the experience and
knowledge needed to ensure
compliance. FMCSA and PHMSA do
not believe the rule will require special
training of drivers operating in the other
States. The Agencies requested public
comment on this issue, but received
none.
For regulated vehicles, the storagedistance related annual crash rate per
1,000 grade crossings is 0.72 based on
data from 1998–2005.11 FMCSA and
PHMSA found that the difference in this
rate between States that have laws/
regulations similar to the Federal rule
adopted today and those that do not is
0.285 crashes per 1,000 grade crossings
per year. Thus, FMCSA and PHMSA
expect 2.62 fewer crashes per year,
when all States adopt this Federal
rule,12 and 0.3 fewer train
derailments.13
FMCSA and PHMSA estimate the
total annual benefits from crashes
avoided to be approximately $946,000.
This consists of $473,000 in reduced
injuries, $1,800 in reduced hazardous
material spills, $33,000 in reduced
highway property damage, and $438,000
in reduced costs for train derailments.
Total implementation costs per year are
estimated to be $302,000 in the first
year, based on the added costs to State
58921
enforcement agencies of administrative,
enforcement, or training activities. The
additional costs for driver training
should be small as the training would
occur as a modification of emphasis in
existing railroad grade crossing training
curricula. Railroad grade crossing
training curricula for drivers would
include training to comply with eight
FMCSRs related to the safe operation of
regulated motor vehicles at railroad
grade crossings and penalties for noncompliance with these railroad grade
crossing safe operation rules. In
addition, drivers who operate in States
with existing laws similar to the
regulations in this final rule will be
familiar with the requirements. Thus,
costs are projected to be about $11,200
in each of the 27 states (including the
District of Columbia) that do not have
an existing law or regulation similar to
the requirements in the final rule. Thus,
the annual net benefits from
implementation of this final rule in the
first year should be about $644,000. In
subsequent years, there would be
$946,000 in annual savings.
Table 1 displays the 10-year average
annual and discounted net costs and
benefits of the statute that we are
implementing in this final rule.14
TABLE 1—TOTAL ESTIMATED 10-YEAR COSTS AND BENEFITS FOR IMPLEMENTING THE STATUTE MANDATING THE FINAL
GRADE CROSSING STORAGE-SPACE RULE
[2013 dollars, in thousands, rounded]
First year
impact
Annual impact
(years 2–10)
10-Year total
10-Year
(discounted at
3 percent) *
10-Year
(discounted at
7 percent) *
Benefits ................................................................................
Costs ....................................................................................
$946
302
$946
0
$9,460
302
$8,312
265
$7,109
227
Net Benefits ..................................................................
644
946
9,158
8,047
6,882
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A–4, Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.
Regulatory Flexibility Act
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In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612),
FMCSA and PHMSA have considered
the effects of this regulatory action on
small entities and determined that this
final rule will not have a significant
economic impact on a substantial
number of small entities, as defined by
the U.S. Small Business
11 122 crashes/8 years/21,208 grade crossings
with limited storage space × 1,000 = 0.72.
12 0.000285 fewer incidents per grade crossing ×
9,204 storage space impacted grade crossings in
States without a similar rule equals 2.62 fewer
crashes per year.
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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 drivers of regulated motor
vehicles). However, the final rule does
not mandate specific changes in carrier
operations or driver training. Rerouting
(as estimated by the sensitivity analysis
in the NPRM) and other logistics costs
that might be borne by small carriers are
expected to be minimal in comparison
to overall operating costs and would be
incorporated into the carrier’s cost of
business to the extent that the carrier
found the delivery profitable.
Additionally, there will probably be
only minimal additional costs for driver
training as the training will probably
13 14 derailments/122 grade crossing incidents ×
2.62 incidents prevented equals 0.3 fewer train
derailments.
14 Note that the numbers for the 10-year costs and
the discount rates differ from what was presented
in the NPRM’s RIA due to a discovery of a minor
mathematical error, the updating to current year
costs with the new estimated average economic
value of a statistical life for injury crashes (VSL),
and the removal of annual fatality benefits, because
zero fatal crashes were found in the analysis period
of 1998–2005. The estimated mean VSL is derived
from the DOT memorandum, ‘‘Treatment of the
Economic Value of a Statistical Life in
Departmental Analyses,’’ February 28, 2013. See
https://www.dot.gov/sites/dot.dev/files/docs/
VSL%20Guidance%202013.pdf.
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occur as a modification of emphasis in
existing training curricula and will not
likely add extra time to the training
requirement. The widespread use of
communications and mapping systems,
electronic and physical, as well as
FRA’s Rail Crossing Locator mobile app,
also work well to inform drivers of
routing issues and provide assistance
with complying with this final rule.
We estimate that a preponderance of
this rule’s implementation costs—
expected to be a one-time cost
composed of government
administrative, enforcement, or training
activities—will affect transportation
personnel in the 27 States, including the
District of Columbia, that do not have an
existing law or regulation similar to the
Federal rule.
Accordingly, the Administrators of
FMCSA and PHMSA hereby certify that
this final rule will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
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Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531, et
seq.) requires Agencies to evaluate
whether an Agency action would result
in the expenditure by State, local, and
tribal governments, in the aggregate, or
by the private sector, of $143.1 million
or more ($100 million, as adjusted for
inflation) in any 1 year, and if so, to take
steps to minimize these unfunded
mandates. This rulemaking would result
in private sector expenditures less than
the $143.1 million threshold. The
analysis shows a positive net benefit,
with normal costs to industry falling far
below the $143.1 million threshold.
The Nebraska Department of Roads
commented that the Agencies’ rule is an
unfunded mandate, unless language is
included to allow for situations where
there is no reasonable alternate route
available. This is speculative, as the
Nebraska Department of Roads did not
provide any specific examples of this
occurring within its road network. It is
also worth mentioning that the rule does
not require States to take any specific
action, further reducing the claim of an
unfunded mandate.
PHMSA and FMCSA, therefore,
believe that this rule would not impose
an unfunded Federal mandate.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
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Executive Order 12630 (Takings of
Private Property)
This rulemaking does not effect a
taking of private property or otherwise
have takings implications under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in
accordance with the principles and
criteria in Executive Order 13132.
FMCSA and PHMSA have determined
that this rulemaking does not have
federalism implications in that it does
not have a substantial direct effect on
States, on the relationship between the
National government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. This rulemaking
is required by Federal law addressing a
matter of national concern. State
statutory provisions were reviewed and
the Agencies are not aware of any State
law that would be preempted by this
rulemaking. Furthermore, States have
been involved actively throughout the
history of the rulemaking process. For
example, State officials were consulted
on anticipated enforcement efforts
impacted by this rule.
Executive Order 12372
(Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this final rule.
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 there are no current or new
information collection requirements
associated with this final rule.
National Environmental Policy Act and
Clean Air Act
The Agencies analyzed this final 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 this final rule should result in
a decrease in highway and rail vehicle
emissions as a result of fewer crashes.
We expect moderately positive impacts
to public safety, specifically at grade
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crossings, based on a decrease in the
likelihood of fatalities and injuries as a
result of crashes due to insufficient
storage distance at grade crossings.
There are no identified overall negative
environmental or socioeconomic
impacts associated with the final rule.
The beneficial impacts of the final
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 improved public 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 also analyzed
this action under section 176(c) of the
Clean Air Act (CAA), as amended (42
U.S.C. 7401 et seq.), and implementing
regulations promulgated by the U.S.
Environmental Protection Agency.
FMCSA and PHMSA recognize that the
action taken in this rulemaking could
affect emissions of criteria pollutants
from regulated motor vehicles. The air
emissions analysis is discussed in the
Environmental Assessment (EA) for this
rule. In determining whether this action
conforms to CAA requirements in areas
designated as nonattainment under
section 107 of the CAA and
maintenance areas established under
section 175A of the CAA, FMCSA and
PHMSA are required (among other
criteria) to determine if the total direct
and indirect emissions are below or
above de minimis levels. In the case of
the alternatives proposed in this Final
Rule, FMCSA and PHMSA consider the
change in emissions to be an indirect
result of the rulemaking action. FMCSA
and PHMSA are requiring drivers and
motor carriers to avoid railroad-grade
crossings where not enough space exists
to traverse the crossing completely,
which, directly, does not result in
additional emissions releases. Although
emissions from additional VMT as a
result of re-routing are foreseeable,
under the definition of ‘indirect
emissions’ in 40 CFR 93.152, FMCSA
and PHMSA lack the ability to control
emissions and do not have continuing
program responsibility, two of the four
criteria that must be met. Therefore, this
action is exempt from the CAA’s general
conformity requirement because it
would not affect the amount of direct or
indirect emissions.15 Moreover, based
15 See EPA’s April 5, 2010 final rule ‘‘Revisions
to the General Conformity Regulations.’’ Also
included are EPA’s detailed discussion and
clarification of its definitions of direct and indirect
emissions at 75 FR 17254, 17260.
E:\FR\FM\25SER1.SGM
25SER1
Federal Register / Vol. 78, No. 186 / Wednesday, September 25, 2013 / Rules and Regulations
on FMCSA’s and PHMSA’s analysis, it
is reasonably foreseeable that the action
would not significantly increase total
regulated motor vehicle mileage, nor
would it change how these vehicles
operate, or the vehicle fleet mix of
motor carriers.
FMCSA and PHMSA conclude that
the rule changes would have a
negligible impact on the quality of
several environmental components
described in the EA and therefore would
not require an Environmental Impact
Statement. Subsequently, FMCSA and
PHMSA are issuing a Finding of No
Significant Impact with regard to
potential environmental impact of this
action.
A copy of the joint FMCSA and
PHMSA Final Environmental
Assessment (Final EA) is included in
both dockets, FMCSA–2006–25660 and
PHMSA–2010–0319 (HM–255). FMCSA
and PHMSA sought public comment on
its draft environmental assessment and
received no comments about it.
Executive Order 12898 (Environmental
Justice)
FMCSA and PHMSA evaluated the
environmental effects of this final rule
in accordance with Executive Order
12898 and determined 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 lowincome populations. None of the
alternatives analyzed in the Agencies’
EA, discussed under NEPA, would
result in high and adverse
environmental impacts.
TKELLEY on DSK3SPTVN1PROD with RULES
Executive Order 13045 (Protection of
Children)
FMCSA and PHMSA analyzed this
action under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks. The Agencies have determined
this rule does not create an
environmental risk to health or safety
that may disproportionately affect
children. None of the alternatives
analyzed in the Agencies’ EA, discussed
under NEPA, result in environmental
risk to health or safety
disproportionately affecting children.
Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
FMCSA and PHMSA analyzed this
rulemaking in accordance with the
principles and criteria in Executive
Order 13175, Consultation and
VerDate Mar<15>2010
16:13 Sep 24, 2013
Jkt 229001
58923
Coordination with Indian Tribal
Governments. This rulemaking is
required by law and does not
significantly or uniquely affect the
communities of the Indian tribal
governments or impose substantial
direct compliance costs on tribal
governments. Thus, the funding and
consultation requirements of E.O. 13175
do not apply and no tribal summary
impact statement is required.
(1) Must comply with the safe
clearance requirements for highway-rail
grade crossings in § 392.12 of this title;
(2) May not engage in, allow, or
require texting while driving, in
accordance with § 392.80 of this title;
and
(3) May not engage in, allow, or
require the use of a hand-held mobile
telephone while driving, in accordance
with § 392.82 of this title.
Executive Order 13211 (Energy Effects)
PART 392—DRIVING OF COMMERCIAL
MOTOR VEHICLES
FMCSA and PHMSA analyzed this
action under Executive Order 13211,
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use. FMCSA and
PHMSA determined that it will not be
a ‘‘significant energy action’’ under that
Executive Order because it will not be
economically significant and will 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 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
3. The authority citation for part 392
is revised to read as follows:
■
Authority: 49 U.S.C. 504, 13902, 31136,
31151, 31502; Section 112 of Pub. L. 103–
311, 108 Stat. 1673, 1676 (1994), as amended
by sec. 32509 of Pub. L. 112–141, 126 Stat.
405, 805 (2012); and 49 CFR 1.87.
4. Section 392.12 is added to read as
follows:
■
§ 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 August 21,
2013 under authority delegated in 49 CFR
1.97 (PHMSA) and 1.87 (FMCSA).
By the Pipeline and Hazardous Materials
Safety Administration.
Cynthia L. Quarterman,
Administrator.
By the Federal Motor Carrier Safety
Administration.
Anne S. Ferro,
Administrator.
[FR Doc. 2013–23375 Filed 9–24–13; 8:45 am]
■
1. The authority citation for part 177
is revised to read as follows:
BILLING CODE 4910–EX–P
Authority: 49 U.S.C. 5101–5127; sec. 112
of Pub. L. 103–311, 108 Stat. 1673, 1676
(1994); sec. 32509 of Pub. L. 112–141, 126
Stat. 405, 805 (2012); 49 CFR 1.97.
DEPARTMENT OF THE INTERIOR
2. Section 177.804 is revised to read
as follows:
50 CFR Part 17
■
§ 177.804 Compliance with Federal Motor
Carrier Safety Regulations.
(a) General. Motor carriers and other
persons subject to this part must comply
with 49 CFR part 383 and 49 CFR parts
390 through 397 (excluding §§ 397.3
and 397.9) to the extent those
regulations apply.
(b) Additional prohibitions. A person
transporting a quantity of hazardous
materials requiring placarding under 49
CFR part 172 or any quantity of a
material listed as a select agent or toxin
in 42 CFR part 73:
PO 00000
Frm 00057
Fmt 4700
Sfmt 4700
Fish and Wildlife Service
[Docket No. FWS–R3–ES–2013–0016;
4500030113]
RIN 1018–AZ41
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Grotto Sculpin (Cottus
specus)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service, exclude all areas that
were proposed as critical habitat for the
SUMMARY:
E:\FR\FM\25SER1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 58915-58923]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23375]
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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: Final rule.
-----------------------------------------------------------------------
SUMMARY: FMCSA and PHMSA amend the Federal Motor Carrier Safety
Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs),
respectively, to prohibit a driver of a commercial motor vehicle or of
a motor vehicle transporting certain hazardous materials or certain
agents or toxins (hereafter collectively referenced as ``regulated
motor vehicle'') 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, as
amended by section 32509 of the Moving Ahead for Progress in the 21st
Century Act (MAP-21). The intent of this rulemaking is to reduce
highway-rail grade crossing crashes.
DATES: This rule is effective October 25, 2013.
[[Page 58916]]
ADDRESSES: You may review the final rule, the technical supporting
documents, economic analysis, environmental assessment, and public
comments for this proceeding identified by Federal Docket Management
System Numbers PHMSA-2010-0319 (HM-255) and FMCSA-2006-25660.
Docket: For access to the docket to read background documents or
comments received, go to https://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.
FOR FURTHER INFORMATION CONTACT: At FMCSA: Mr. Thomas Yager, Driver and
Carrier Operations, (202) 366-4325 or MCPSD@dot.gov, Federal Motor
Carrier Safety Administration, U.S. Department of Transportation, 1200
New Jersey Avenue SE., Washington, DC 20590-0001. 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 or phmsa.hmhazmatsafety@dot.gov, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation,
1200 New Jersey Avenue SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Summary of the Final Rule
This action is in response to section 112 of the Hazardous
Materials Transportation Authorization Act of 1994 (HMTAA), as amended
by section 32509 of MAP-21. The intent of this rulemaking is to reduce
highway-rail grade crossing crashes. FMCSA and PHMSA implement the
statutory mandate enacted in section 112 of the HMTAA, as amended, by
changing the FMCSRs and HMRs, respectively, to prohibit drivers of
regulated motor vehicles from entering onto a highway-rail grade
crossing unless there is sufficient space to drive completely through
the grade crossing without stopping. The Agencies published the notice
of proposed rulemaking (NPRM) for this final rule on January 28, 2011
(76 FR 5120), which also included a history of actions from 1998
through 2006 that led to the 2011 NPRM.
B. Costs and Benefits
As explained in section VI. Regulatory Analyses below, FMCSA and
PHMSA expect 2.62 fewer crashes per year, when all States adopt rules
compatible with this Federal rule,\1\ and 0.3 fewer train
derailments.\2\
---------------------------------------------------------------------------
\1\ 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.
\2\ 14 derailments/122 grade crossing incidents x 2.62 incidents
prevented equals 0.3 fewer train derailments.
---------------------------------------------------------------------------
FMCSA and PHMSA estimate the total annual benefits from crashes
avoided to be approximately $946,000. This consists of $473,000 in
reduced injuries, $1,800 in reduced hazardous material spills, $33,000
in reduced highway property damage, and $438,000 in reduced costs for
train derailments. Total implementation costs per year are estimated to
be $302,300 in the first year, based on the added costs to State
enforcement agencies of administrative, enforcement, or training
activities. The additional costs for driver training should be small as
the training would occur as a modification of emphasis in existing
railroad grade crossing training curricula. Railroad grade crossing
training curricula for drivers would include training to comply with
eight FMCSRs related to the safe operation of regulated motor vehicles
at railroad grade crossings and penalties for non-compliance with these
railroad grade crossing safe operation rules. In addition, drivers who
operate in States with existing laws similar to the regulations in this
final rule will be familiar with the requirements. The costs are
projected to be about $11,200 in each of the 27 states (including the
District of Columbia) that do not have an existing law or regulation
similar to the requirements in the final rule. Thus, the annual net
benefits from implementation of this final rule in the first year
should be about $644,000. In subsequent years, there would be no costs,
thus, $946,000 would be saved in subsequent years.
Table ES-1 displays the 10-year average annual and discounted net
costs and benefits of the statute that we are implementing in this
final rule.\3\
---------------------------------------------------------------------------
\3\ Note that the numbers for the 10-year costs and the discount
rates differ from what was presented in the NPRM's RIA due to a
discovery of a minor mathematical error, the updating to current
year costs with the new estimated average economic value of a
statistical life for injury crashes (VSL), and the removal of annual
fatality benefits, because zero fatal crashes were found in the
analysis period of 1998-2005. The estimated mean VSL is derived from
the DOT memorandum, ``Treatment of the Economic Value of a
Statistical Life in Departmental Analyses,'' February 28, 2013. See
https://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance%202013.pdf.
Table ES-1--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Final Grade
Crossing Storage-Space Rule
[2013 dollars, in thousands, rounded]
----------------------------------------------------------------------------------------------------------------
10-year 10-year
First year Annual impact 10-year total (Discounted at (Discounted at
impact (years 2-10) 3 percent) * 7 percent) *
----------------------------------------------------------------------------------------------------------------
Benefits........................ $946 $946 $9,460 $8,312 $7,109
Costs........................... 302 0 302 265 227
-------------------------------------------------------------------------------
Net Benefits................ 644 946 9,158 8,047 6,882
----------------------------------------------------------------------------------------------------------------
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular
A[dash]4, Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.
II. Background and Legal Basis for the Rulemaking
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, as amended by section 32509 of the Moving Ahead for
Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat.
405, 805, July 6, 2012] provides as follows:
Sec. 112 Grade Crossing Safety.
[[Page 58917]]
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 311 of such title (relating to commercial
motor vehicle 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.
The report by the Senate Committee on Commerce, Science, and
Transportation states that section 112 is intended 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 number of fatalities resulting from such accidents
often is increased because of the presence of hazardous materials. .
. . [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[hellip]will help to
reduce the number of tragedies associated with grade crossing
accidents.
S. Rep. No. 103-217, at 11 (December 9, 1993), reprinted in 1994
U.S.C.C.A.N. 1763, 1773). In sum, section 112 specifically directs DOT
to prohibit drivers of motor vehicles subject to Federal hazmat law and
the HMRs issued thereunder and the commercial motor vehicle operators
subject to 49 U.S.C. chapter 311 and the FMCSRs issued thereunder from
driving ``onto a highway-rail grade crossing without having sufficient
space to drive completely through the crossing without stopping.''
PHMSA and FMCSA are carrying out this statutory mandate in this final
rule.
With respect to section 112(1), PHMSA has been delegated the
authority in Federal hazardous material transportation law (Federal
hazmat law), chapter 51 of Title 49 U.S.C., to ``designate material . .
. or a group or class of material as hazardous when the Secretary
determines that transporting the material in commerce in a particular
amount and form may pose an unreasonable risk to health and safety or
property'' and to ``prescribe regulations for the safe transportation,
including security, of hazardous material in intrastate, interstate,
and foreign commerce'' which apply to a person who ``transports
hazardous material in commerce.'' 49 U.S.C. 5103(a), (b)(1); see 49 CFR
1.97(b)(2).
With respect to section 112(2), FMCSA has been delegated authority
under the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II,
98 Stat. 2832, October 30, 1984), as amended, to ``prescribe
regulations on commercial motor vehicle safety'' in order to ensure
that ``commercial motor vehicles are . . . operated safely.'' See 49
U.S.C. 31136(a)(1); \4\ 49 CFR 1.87(f). Other factors under 49 U.S.C.
31136(a)(1) (commercial motor vehicle maintenance, equipment, and
loading), and factors under section 31136(a)(2) (responsibilities on
drivers not to impair safe commercial motor vehicle operation) and (3)
(physical condition of drivers enables safe commercial motor vehicle
operation) are not germane to this rulemaking. Section 31136(a)(4)
(commercial motor vehicle operation does not have deleterious effect on
driver's physical condition) is only indirectly related in that this
rule will protect drivers from certain accidents/crashes. Finally,
given the minimal distances and time required to avoid prohibited rail
grade crossings, the lack of opportunity for motor carriers, shippers,
receivers, and transportation intermediaries to communicate timely with
drivers regarding decisions to cross, and the obvious personal safety
risk to the commercial motor vehicle operator of attempting to cross
where the is not sufficient space, the Agency considers any risk of
driver coercion under 49 U.S.C. 31136(a)(5) (commercial motor vehicle
operator not to be coerced by motor carrier, shipper, receiver, or
transportation intermediary into operating commercial motor vehicle in
violation of certain regulations) in connection with this rulemaking to
be negligible.
---------------------------------------------------------------------------
\4\ For purposes of section 31136, ```commercial motor vehicle'
means a self-propelled or towed vehicle used on the highways in
interstate commerce to transport passengers or property, if the
vehicle has a gross vehicle weight rating or gross vehicle weight of
at least 10,001 pounds, whichever is greater; is designed or used to
transport more than 8 passengers (including the driver) for
compensation; is designed or used to transport more than 15
passengers, including the driver, and is not used to transport
passengers for compensation; or is used in transporting material
found by the Secretary of Transportation to be hazardous materials
under section 5103 of this title and transported in a quantity
requiring placarding under regulations prescribed by the Secretary
under section 5103.
49 U.S.C. 31132(1); see also 49 CFR 390.5.
---------------------------------------------------------------------------
III. History
PHMSA and FMCSA published the NPRM for this final rule on January
28, 2011 (76 FR 5120). That notice included a history of FMCSA's and
its predecessor's actions from 1998 through 2006 that led to the 2011
NPRM. The 2011 NPRM provides a discussion of the history of this
proceeding, including the survey of State statutes on grade crossings
laws, grade crossing safety outreach activities, and the 2006 public
meeting that provided interested parties an opportunity to express
their views before issuance of the January 28, 2011 NPRM.
Since publication of the NPRM, section 112(2) was amended in MAP-21
to correct the statutory reference from chapter 315 to chapter 311
(``commercial motor vehicle safety'') of Title 49, United States Code.
This clarifies that the authority for FMCSA's final rule is the
direction to ``prescribe regulations on commercial motor vehicle
safety'' in section 31136. Accordingly, with respect to the final rule
issued by FMCSA, the definition of ``commercial motor vehicle'' in 49
U.S.C. 31132(1) and 49 CFR 390.5 applies to the prohibition being
adopted in 49 CFR 392.12.\5\
---------------------------------------------------------------------------
\5\ FMCSA acknowledges a drafting error in the NPRM resulting in
an inconsistency between the preamble and the proposed regulatory
text. Whereas the preamble addressed FMCSA's authority over ``motor
carrier[s]'' and ``motor private carrier[s],'' terms used in chapter
315 of Title 49, the regulatory text in proposed 49 CFR 392.12
referenced ``commercial motor vehicle[s],'' as defined 49 CFR 390.5,
and consistent with chapter 311 of Title 49 and related provisions
in the FMCSRs, issued under the authority of Sec. 31136. See, e.g.
49 CFR 392.11 (Railroad grade crossings; slowing down required).
However, none of the commenters addressed that anomaly. The
amendments to section 112 of the HMTAA by MAP-21 ratified the
reference to ``commercial motor vehicle'' in 49 CFR 392.12 as
proposed in the NPRM and adopted in this final rule.
---------------------------------------------------------------------------
In the NPRM, PHMSA proposed to add a new paragraph 49 CFR
177.804(b) to the HMR, making the prohibition in 49 CFR 392.12
applicable to drivers of motor vehicles transporting a quantity of
hazardous materials requiring placarding under subpart F of 49 CFR part
172 or a material listed as select agent or toxin listed in 42 CFR part
73. As discussed, this would make the prohibition against driving onto
a highway-rail grade crossing without having sufficient space to drive
completely through the crossing without stopping applicable to
``drivers of motor vehicles of any size that are used to transport
[these materials]. Additionally, it includes drivers engaged in
intrastate or interstate commerce.'' 76 FR at 5122; see also id. at
5123-24.
However, 49 CFR 177.804(b) is no longer available, because in a
final rule published on February 28, 2011, PHMSA (in coordination with
FMCSA) adopted a new Sec. 177.804(b) providing that ``a person
transporting a quantity of hazardous materials requiring
[[Page 58918]]
placarding under 49 CFR part 172 or any quantity of a material listed
as a select agent or toxin in 42 CFR part 73 may not engage in, allow,
or require texting while driving.'' 76 FR 10771, 10778. PHMSA (also in
coordination with FMCSA) adopted a new Sec. 177.804(c) on December 2,
2011, providing that ``a person transporting a quantity of hazardous
materials requiring placarding under Part 172 [of 49 CFR] or any
quantity of a material listed as a select agent or toxin in 42 CFR part
73 may not engage in, allow, or require use of a hand-held mobile
telephone while driving.'' 76 FR 75470, 75485-6.
Therefore, as all the recent joint PHMSA and FMCSA rules have been
applicable to ``a person transporting a quantity of hazardous materials
requiring placarding under 49 CFR part 172 or any quantity of a
material listed as a select agent or toxin in 42 CFR part 73,'' PHMSA
is consolidating this final rule with the anti-texting and anti-mobile-
telephone rules by creating a new introductory phrase at 49 CFR
177.804(b) that reads as set forth in the regulatory text of this rule;
and adopting three subparagraphs: (b)(1) the substance of the
prohibition proposed in the NPRM; (b)(2) the prohibition against
texting while driving; and (b)(3) the prohibition against using a hand-
held mobile telephone while driving. The cross-reference to the
definition of ``hazardous materials'' in 49 CFR 383.5 is deleted
because it is not needed. As in the current provisions against texting
and hand-held mobile telephone use previously located in 49 CFR
177.804(b) and (c), these categories appear to be the materials with
which the Senate Report had concern in stating that the ``number of
fatalities resulting from [highway-rail grade crossing] accidents often
is increased because of the presence of hazardous materials.'' 1994
U.S.C.C.A.N. at 1773.
IV. Comments on the Proposed Rule
Overview of Comments
FMCSA and PHMSA received 16 comments to the jointly issued NPRM.
Comments were received from two truck drivers, four private
individuals, and the following industry associations, State agencies,
and advocacy groups:
Association of American Railroads (AAR)
American Trucking Associations, Inc. (ATA)
National Association of Chemical Distributors (NACD)
National Tank Truck Carriers, Inc. (NTTC)
Owner Operator Independent Drivers Association, Inc. (OOIDA)
California Public Utilities Commission (CPUC)
Nebraska Department of Roads (NEDR)
North Carolina Department of Transportation (NCDOT)
Commercial Vehicle Safety Alliance (CVSA)
Advocates for Highway and Auto Safety (Advocates).
A private individual, the AAR, and the NCDOT fully support the
proposal. The CVSA and the CPUC support the proposal, but believe it
will be difficult to enforce.
Other comments and responsive considerations are as follows.
Require Others To Mark Crossings
The two truck drivers, ATA, NACD, NTTC, and Advocates recommend
that FMCSA and PHMSA require State and local jurisdictions to specially
mark and provide signs at the 21,208 grade crossings that the proposal
identified as likely having limited clear storage distances to
accommodate commercial motor vehicles.
Response. As FMCSA and PHMSA indicated in the NPRM, recommendations
to require States and local jurisdictions have been made previously.
The Agencies have a clear mandate from Congress to prohibit a driver of
a regulated motor vehicle from driving the vehicle onto a highway-rail
grade crossing without having sufficient space to drive completely
through the crossing without stopping. FMCSA and PHMSA lack authority
to require the States and local governments to install markings and
signage as suggested.
Further, as discussed in the NPRM, Federal Highway Administration
(FHWA) has funding available annually under the Highway Safety
Improvement Program (HSIP) \6\ for a variety of highway safety
improvement projects. Eligible projects include (1) construction and
improvement of a railway-highway grade crossing safety feature,
including the installation of protection devices; (2) installation,
replacement, and other improvements of highway signage and pavement
markings or projects to maintain minimum levels of retroreflectivity
that address a highway safety problem consistent with a State strategic
highway safety plan; and (3) installation of traffic control or other
warning devices at locations with high crash potential.
---------------------------------------------------------------------------
\6\ See 23 U.S.C. 104(b)(3) (``Highway Safety Improvement
Program''). Improvements qualify as ``highway safety improvement
project[s]'' under 23 U.S.C. 148(a). See also 23 CFR part 924,
Highway Safety Improvement Program.
---------------------------------------------------------------------------
Also, FHWA has funding available under the Railway-Highway
Crossings Program (23 U.S.C. 130) for the elimination of hazards at
grade crossings. FMCSA and PHMSA have brought commenters' suggestions
to the attention of FHWA. We noted in the NPRM 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.
Logistical Challenges
In its comments, ATA noted that there are logistical challenges in
implementing and enforcing the rule. OOIDA noted that the Agencies
erroneously assumed drivers are aware of crossings consisting of
inadequate storage space and that alternative routes exist.
Response. While we acknowledge commenters' concerns, FMCSA and
PHMSA do not believe the logistical challenges warrant a further delay
in issuing the rule. The rule places upon drivers the responsibility to
approach grade crossings with caution and to avoid going through the
crossing unless there is enough room to completely clear the tracks
without stopping. Admittedly, this may be difficult without knowing in
advance all the crossings that may be along the route, the space around
those crossings, and where there are traffic control devices and
intersections that could result in a driver being forced to stop
unexpectedly before clearing the track. The Agencies encourage
enforcement discretion in those circumstances. However, the statutory
mandate is clear and the Agencies do not have discretion whether to
issue the rule, as drafted. The Agencies note that motor carriers are
required by Sec. Sec. 397.67 and 397.101 to plan routes for certain
hazardous material shipments and create a written route plan document
for the driver. To the extent practicable, this mandatory planning
should include preparation for grade crossings.
In addition, the Agencies remind all those involved with the
arrangement for transportation services that the National
Transportation Safety Board (NTSB) has found situations where shippers
and receivers often know of the logistical and physical challenges
truck drivers would face in getting to their loading and delivery
locations, yet fail to communicate those challenges to the carrier and
driver.\7\ Therefore, motor
[[Page 58919]]
carriers and brokers should ask shippers and receivers about any
logistical or physical challenges that might exist near, or on the
roads leading to, loading and delivery locations. The Agencies
recognize that avoidance of problematic grade crossings will not always
be practicable. However, in many cases, industry will have
opportunities to effectively address this issue.
---------------------------------------------------------------------------
\7\ National Transportation Safety Board. 2002. Collision
Between Amtrak Train 97 and Molnar Worldwide Heavy Haul Company
Tractor-Trailer Combination Vehicle at Highway-Rail Grade Crossing
in Intercession City, Florida, on November 17, 2000, Highway
Accident Summary Report. NTSB/HAR-02/02. Washington, DC. The NTSB
determined ``that the probable cause of the November 2000 collision
of Amtrak train 97 with the tractor-combination vehicle was the
failure of the Kissimmee Utility Authority, its construction
contractors and subcontractors, and the motor carrier to provide for
the safe passage of the load over the grade crossing.'' https://www.ntsb.gov/doclib/reports/2002/HAR0202.pdf.
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Access to Grade Crossing Information
OOIDA noted that maps, global positioning systems (GPS), and
internet-generated directions often do not include grade crossing
information, let alone storage space information. ATA suggested that
motor carriers are more frequently using GPS and other guidance
technologies to plot routes. Because these technologies can
specifically target certain locations if those locations have been
built into the technology's databases, ATA suggested the Agencies share
their data reflecting the locations of these grade crossings with GPS
device manufacturers. The Agencies should encourage manufacturers to
incorporate these points into their products so that grade crossings
can be displayed and detoured around when necessary.
Response. The Agencies agree that data about the locations of
potentially problematic grade crossings should be made available to the
industry and GPS navigation system service providers, whenever
possible. The Agencies worked with the John A. Volpe National
Transportation Systems Center (Volpe) to conduct a variety of
supplemental analyses which augment the Federal Railroad Administration
(FRA) Grade Crossing Inventory System (GCIS) data that is available to
the public. The GCIS served as the initial basis for determining the
set of highway-rail grade crossings at which insufficient clear storage
distance may be a concern. Volpe supplemented data from the GCIS with
grade crossing latitude and longitude coordinate information available
through the FRA's Office of Policy and Program Development.\8\
---------------------------------------------------------------------------
\8\ Proprietary digital road network data files were also used
and analyzed for potential storage space issues on the basis of
geographic information system (GIS) techniques described in more
detail in the docketed study. The procedures the Agencies used to
create the dataset are fully explained in the technical supporting
document.
---------------------------------------------------------------------------
In June 2013, FRA released a mobile phone application (app) for
Apple brand iPhoneTM and iPadTM users. The Rail
Crossing Locator mobile app provides users with access to grade
crossing inventory information and accident data from the GCIS
database. The application allows users to: locate crossings by USDOT
Crossing ID, address or geo-location; access inventory records
submitted by states and railroads; and view accident history. Users can
also select from multiple base map features to see the crossing
location, expand or narrow the buffer radius of a location, or get
detailed information about a specific crossing. The inventory record
for a public crossing will provide information about the presence of a
nearby intersection as follows: less than 75 feet, 75 to 200 feet, and
200 to 500 feet and if the intersection has a traffic signal. Although
this app will not provide complete information to ensure compliance
with the rule, it will assist drivers in more strategically planning
their routes. FMCSA and PHMSA remind regulated vehicle drivers of their
duty to follow both Sec. 392.82, prohibiting a driver from using a
hand-held mobile telephone while driving, and current Sec. 177.804(c),
being reorganized and renumbered as Sec. 177.804(b)(3) in this final
rule, prohibiting certain intrastate HM drivers from using a hand-held
mobile telephone while driving. Industry and GPS navigation system
service providers can now use the Rail Crossing Locator mobile app to
plot routes to comply with this final rule.
Exception When No Reasonable Alternative Routes Are Available
The Nebraska Department of Roads and OOIDA suggested the rule
should include an exception to allow for situations where there is no
reasonable alternate route available. They argue that in rural States
and industrial areas there are many crossings where no reasonable
detour route exists. Nebraska also argued that the potential cost to
implement the rule in Nebraska would be an unfunded mandate.
Response. As indicated above, in many situations, communications
among shippers, receivers, freight forwarders, brokers, and motor
carriers about issues in the vicinity of pick-up and drop-off points
that may make it difficult for large trucks, especially combination
vehicles, may help to address this issue. However, the Agencies
acknowledge alternative routes may not be available. In certain
circumstances, the railroad could be brought into the planning
conversation with regard to the train schedules as the specialized
equipment hauling industry does regularly and as the NTSB recommended
in its 2002 report about the November 17, 2000, crash in Intercession
City, FL.\9\
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\9\ National Transportation Safety Board. 2002. Collision
Between Amtrak Train 97 and Molnar Worldwide Heavy Haul Company
Tractor-Trailer Combination Vehicle at Highway-Rail Grade Crossing
in Intercession City, Florida, on November 17, 2000, Highway
Accident Summary Report. NTSB/HAR-02/02. Washington, DC. The NTSB
determined ``that the probable cause of the November 2000 collision
of Amtrak train 97 with the tractor-combination vehicle was the
failure of the Kissimmee Utility Authority, its construction
contractors and subcontractors, and the motor carrier to provide for
the safe passage of the load over the grade crossing.'' https://www.ntsb.gov/doclib/reports/2002/HAR0202.pdf.
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Consistency With Executive Order 13563
Citing Executive Order 13563, ``Improving Regulation and Regulatory
Review,'' which President Obama issued in January 2011, a commenter
urged the withdrawal of the NPRM.
Response. The final rule is required by statute and nothing in the
Executive Order suggests that the Agency should delay implementation of
statutory provisions for which the options for implementation are as
limited as the 1994 provision implemented in today's final rule. The
rule will reduce regulated motor vehicle-train crashes, while having
relatively small impacts on business productivity.
Intrastate Transportation of Hazardous Materials
An anonymous commenter stated that ``the proposed rule is a direct
attack on the sovereignty of the several states'' on the alleged ground
that the Commerce Clause in Article I, Section 8 of the U.S.
Constitution authorizes Congress only ``[t]o regulate Commerce with
foreign nations, and among the several States, and with the Indian
Tribes.''
Response: In United States v. Lopez, 514 U.S. 549, 558-559 (1995),
and United States v. Morrison, 529 U.S. 598, 608-609 (2000), the
Supreme Court observed that ``modern Commerce Clause jurisprudence''
has ``identified three broad categories of activity that Congress may
regulate under its commerce power * * *
``First, Congress may regulate the use of the channels of
interstate commerce . . .
``Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities . . .
``Finally, Congress' commerce authority includes the power
to regulate those activities having a substantial relation to
interstate commerce, . . .
[[Page 58920]]
i.e., those activities that substantially affect interstate commerce.''
(internal citations omitted).
Accordingly, there is no doubt that Congress is empowered to
regulate ``activities that substantially affect interstate commerce.''
Congress has explicitly done this by providing that the purpose of the
Federal hazardous material transportation law ``is to protect against
the risks to life, property, and the environment that are inherent in
the transportation of hazardous material in intrastate, interstate, and
foreign commerce,'' 49 U.S.C. 5101, and defining ``commerce'' to
include ``trade or transportation in the jurisdiction of the United
States . . . that affects trade or transportation between a place in a
State and a place outside of the State.'' 49 U.S.C. 5102(1).\10\
---------------------------------------------------------------------------
\10\ As enacted in 1975, the Hazardous Material Transportation
Act declared that it was ``the policy of Congress in this chapter to
improve the regulatory and enforcement authority of the Secretary of
Transportation to protect the Nation adequately against the risks to
life and property which are inherent in the transportation of
hazardous material in commerce.'' Public Law 93-633, Title I, sec.
102, 88 Stat. 2156 (Jan. 3, 1975). In the same Act, ``commerce'' was
defined to mean ``trade, traffic, commerce, or transportation,
within the jurisdiction of the United States, (A) between a place in
a State and any place outside of such State, or (B) which affects
trade, traffic, commerce, or transportation described in clause
(A).'' Id., sec. 103(1).
---------------------------------------------------------------------------
In the Lopez and Morrison cases, the Supreme Court noted that,
``[w]here economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained.'' 514 U.S. at
560, 529 U.S. at 610. Here, the transportation of hazardous materials
in commerce directly involves an economic activity, and the safety of
intrastate transportation of hazardous materials has the potential of a
substantial effect on interstate transportation of both hazardous and
non-hazardous materials. Indeed, a crash at a highway-rail grade
crossing involving any motor vehicle transporting hazardous materials
necessarily has a direct effect upon the train involved in that crash,
and that grade crossing is part of the national railroad system.
Moreover, a grade crossing crash may result in injuries and fatalities
to members of the train crew as well as to the motor vehicle operator,
his or her passengers, and other persons in the vicinity of the crash.
For these reasons, we disagree that the prohibition adopted in this
final rule is in violation of the Commerce Clause of the U.S.
Constitution.
Expand Applicability to All Vehicles
A commenter suggested FMCSA and PHMSA should expand the
applicability of this final rule to ``all vehicles'' and ``not just
Commercial vehicles'' that cross highway-rail grade crossings. She
stated that this is a dangerous problem for all traffic as she lives
near a grade crossing and sees vehicles trapped on the tracks
regularly.
Response. As discussed above, PHMSA has authority to prescribe
regulations for the transportation of hazardous material ``in
intrastate, interstate, and foreign commerce.'' 49 U.S.C. 5103(b)(1).
For this reason, the HMRs do not apply to ``[t]ransportation of a
hazardous material by an individual for non-commercial purposes in a
private motor vehicle.'' 49 CFR 171.1(d)(6). Similarly, FMCSA has
authority to ``prescribe regulations on commercial motor vehicle
safety.'' 49 U.S.C. 31136(a). But neither Agency has statutory
authority to regulate non-commercial vehicles, i.e., vehicles not
transporting persons or property in commerce. Accordingly, in HMTAA
section 112, Congress directed DOT to prohibit the driver of ``a motor
vehicle transporting hazardous materials in commerce'' or ``any
commercial motor vehicle'' from entering a highway-rail grade crossing
when there was not ``sufficient space to drive completely through the
crossing without stopping.'' (emphasis supplied). This final rule
carries out that mandate without going beyond the statutory authority
of the two Agencies.
V. The Final Rule
49 CFR 392.12
This final rule implements the statutory mandate enacted in section
112 of the HMTAA, as amended. The rule prohibits regulated motor
vehicles from using certain grade crossings.
To proceed through a grade crossing with inadequate storage
distance, a driver of a regulated motor vehicle will have to either
ignore the traffic control device or comply with the traffic control
device but violate the rule by driving onto the grade crossing without
having sufficient space to drive completely through the crossing
without stopping. As discussed earlier, the shipper, receiver, broker,
and motor carrier should communicate about problematic routes in
advance to avoid placing drivers in such untenable positions by re-
routing standard-sized regulated motor vehicles around such grade
crossings, using smaller regulated motor vehicles at the crossings, or
ensuring that the railroad company is informed well ahead of the
planned crossing time and is given an opportunity to inform train crews
and flagmen. Also, as discussed earlier, FRA's Rail Crossing Locator
mobile app will provide access to grade crossing inventory information
that will assist drivers in more strategically planning their routes to
avoid problematic grade crossings.
49 CFR 177.804
To ensure that the statutory language of section 112, as amended,
applies to both interstate and intrastate motor carriers transporting
hazardous materials, PHMSA revises 49 CFR 177.804. PHMSA has revised
paragraph (b) by creating a new introductory phrase as set forth in the
regulatory text of this rule. New paragraph (b)(1) requires the driver
of a motor vehicle transporting this type and quantity of hazardous
materials to comply with the safe clearance requirements for highway-
rail crossings in 49 CFR 392.12. 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. Current
paragraph (b) has become paragraph (b)(2), and current paragraph (c)
has become paragraph (b)(3).
VI. Regulatory Analyses
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory 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, as supplemented by Executive Order 13563, issued January 18,
2011 (76 FR 3821). FMCSA and PHMSA expect the final rule will have
minimal costs and generate minimal public interest. Of the 16 comments
submitted to the January 28, 2011 NPRM, none provided data or
information that would suggest the economic impact would meet or exceed
the threshold for the Executive Order.
Costs and Benefits of Rule Implementation
The Agencies are required by statute to implement a rule
prohibiting drivers of regulated motor vehicles from entering a
highway-rail grade crossing unless there is sufficient space to clear
the crossing completely without stopping. The data available to FMCSA
indicate that those 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 crash rate
[[Page 58921]]
differences, the Agencies believe the differential is large enough to
suggest that such rules have safety benefits. The number of States
which have voluntarily adopted storage-space rules also suggests that
the costs of implementing the requirements have not proven to be an
issue with the motor carrier industry. Based on the safety impacts seen
in the States that have adopted requirements similar to those addressed
in this rulemaking, FMCSA and PHMSA believe the rule will provide a
cost-beneficial enhancement to safety.
In the cost and benefit discussions that follow, the Agencies
consider the costs and benefits applicable to the total population of
carriers affected by this rule. Because the final rule does not mandate
specific changes in carrier operations, driver training, or grade
crossing infrastructure enhancements and no specific comments were
received providing any data to change the Agencies' analyses, FMCSA and
PHMSA conclude that the cost impacts will not be significant. Because a
substantial number of States already have in place storage-space rules,
drivers of regulated motor vehicles operating in or through those
States should have the experience and knowledge needed to ensure
compliance. FMCSA and PHMSA do not believe the rule will require
special training of drivers operating in the other States. The Agencies
requested public comment on this issue, but received none.
For regulated vehicles, the storage-distance related annual crash
rate per 1,000 grade crossings is 0.72 based on data from 1998-
2005.\11\ FMCSA and PHMSA found that the difference in this rate
between States that have laws/regulations similar to the Federal rule
adopted today and those that do not is 0.285 crashes per 1,000 grade
crossings per year. Thus, FMCSA and PHMSA expect 2.62 fewer crashes per
year, when all States adopt this Federal rule,\12\ and 0.3 fewer train
derailments.\13\
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\11\ 122 crashes/8 years/21,208 grade crossings with limited
storage space x 1,000 = 0.72.
\12\ 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.
\13\ 14 derailments/122 grade crossing incidents x 2.62
incidents prevented equals 0.3 fewer train derailments.
---------------------------------------------------------------------------
FMCSA and PHMSA estimate the total annual benefits from crashes
avoided to be approximately $946,000. This consists of $473,000 in
reduced injuries, $1,800 in reduced hazardous material spills, $33,000
in reduced highway property damage, and $438,000 in reduced costs for
train derailments. Total implementation costs per year are estimated to
be $302,000 in the first year, based on the added costs to State
enforcement agencies of administrative, enforcement, or training
activities. The additional costs for driver training should be small as
the training would occur as a modification of emphasis in existing
railroad grade crossing training curricula. Railroad grade crossing
training curricula for drivers would include training to comply with
eight FMCSRs related to the safe operation of regulated motor vehicles
at railroad grade crossings and penalties for non-compliance with these
railroad grade crossing safe operation rules. In addition, drivers who
operate in States with existing laws similar to the regulations in this
final rule will be familiar with the requirements. Thus, costs are
projected to be about $11,200 in each of the 27 states (including the
District of Columbia) that do not have an existing law or regulation
similar to the requirements in the final rule. Thus, the annual net
benefits from implementation of this final rule in the first year
should be about $644,000. In subsequent years, there would be $946,000
in annual savings.
Table 1 displays the 10-year average annual and discounted net
costs and benefits of the statute that we are implementing in this
final rule.\14\
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\14\ Note that the numbers for the 10-year costs and the
discount rates differ from what was presented in the NPRM's RIA due
to a discovery of a minor mathematical error, the updating to
current year costs with the new estimated average economic value of
a statistical life for injury crashes (VSL), and the removal of
annual fatality benefits, because zero fatal crashes were found in
the analysis period of 1998-2005. The estimated mean VSL is derived
from the DOT memorandum, ``Treatment of the Economic Value of a
Statistical Life in Departmental Analyses,'' February 28, 2013. See
https://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance%202013.pdf.
Table 1--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Final Grade
Crossing Storage-Space Rule
[2013 dollars, in thousands, rounded]
----------------------------------------------------------------------------------------------------------------
10-Year 10-Year
First year Annual impact 10-Year total (discounted at (discounted at
impact (years 2-10) 3 percent) * 7 percent) *
----------------------------------------------------------------------------------------------------------------
Benefits........................ $946 $946 $9,460 $8,312 $7,109
Costs........................... 302 0 302 265 227
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Net Benefits................ 644 946 9,158 8,047 6,882
----------------------------------------------------------------------------------------------------------------
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4,
Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.
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 regulatory
action on small entities and determined that this final rule will 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 drivers of
regulated motor vehicles). However, the final rule does not mandate
specific changes in carrier operations or driver training. Rerouting
(as estimated by the sensitivity analysis in the NPRM) and other
logistics costs that might be borne by small carriers are expected to
be minimal in comparison to overall operating costs and would be
incorporated into the carrier's cost of business to the extent that the
carrier found the delivery profitable.
Additionally, there will probably be only minimal additional costs
for driver training as the training will probably
[[Page 58922]]
occur as a modification of emphasis in existing training curricula and
will not likely add extra time to the training requirement. The
widespread use of communications and mapping systems, electronic and
physical, as well as FRA's Rail Crossing Locator mobile app, also work
well to inform drivers of routing issues and provide assistance with
complying with this final rule.
We estimate that a preponderance of this rule's implementation
costs--expected to be a one-time cost composed of government
administrative, enforcement, or training activities--will affect
transportation personnel in the 27 States, including the District of
Columbia, that do not have an existing law or regulation similar to the
Federal rule.
Accordingly, the Administrators of FMCSA and PHMSA hereby certify
that this final rule will not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531, et seq.) requires Agencies to evaluate whether an Agency action
would result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $143.1
million or more ($100 million, as adjusted for inflation) in any 1
year, and if so, to take steps to minimize these unfunded mandates.
This rulemaking would result in private sector expenditures less than
the $143.1 million threshold. The analysis shows a positive net
benefit, with normal costs to industry falling far below the $143.1
million threshold.
The Nebraska Department of Roads commented that the Agencies' rule
is an unfunded mandate, unless language is included to allow for
situations where there is no reasonable alternate route available. This
is speculative, as the Nebraska Department of Roads did not provide any
specific examples of this occurring within its road network. It is also
worth mentioning that the rule does not require States to take any
specific action, further reducing the claim of an unfunded mandate.
PHMSA and FMCSA, therefore, believe that this rule would not impose
an unfunded Federal mandate.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 12630 (Takings of Private Property)
This rulemaking does not effect a taking of private property or
otherwise have takings implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria in Executive Order 13132. FMCSA and PHMSA have determined that
this rulemaking does not have federalism implications in that it does
not have a substantial direct effect on States, on the relationship
between the National government and the States, or on the distribution
of power and responsibilities among the various levels of government.
This rulemaking is required by Federal law addressing a matter of
national concern. State statutory provisions were reviewed and the
Agencies are not aware of any State law that would be preempted by this
rulemaking. Furthermore, States have been involved actively throughout
the history of the rulemaking process. For example, State officials
were consulted on anticipated enforcement efforts impacted by this
rule.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this final rule.
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 there are no current or new information collection
requirements associated with this final rule.
National Environmental Policy Act and Clean Air Act
The Agencies analyzed this final 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 this final rule should result in a
decrease in highway and rail vehicle emissions as a result of fewer
crashes. We expect moderately positive impacts to public safety,
specifically at grade crossings, based on a decrease in the likelihood
of fatalities and injuries as a result of crashes due to insufficient
storage distance at grade crossings. There are no identified overall
negative environmental or socioeconomic impacts associated with the
final rule.
The beneficial impacts of the final 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 improved public 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 also analyzed this action under section 176(c) of
the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and
implementing regulations promulgated by the U.S. Environmental
Protection Agency. FMCSA and PHMSA recognize that the action taken in
this rulemaking could affect emissions of criteria pollutants from
regulated motor vehicles. The air emissions analysis is discussed in
the Environmental Assessment (EA) for this rule. In determining whether
this action conforms to CAA requirements in areas designated as
nonattainment under section 107 of the CAA and maintenance areas
established under section 175A of the CAA, FMCSA and PHMSA are required
(among other criteria) to determine if the total direct and indirect
emissions are below or above de minimis levels. In the case of the
alternatives proposed in this Final Rule, FMCSA and PHMSA consider the
change in emissions to be an indirect result of the rulemaking action.
FMCSA and PHMSA are requiring drivers and motor carriers to avoid
railroad-grade crossings where not enough space exists to traverse the
crossing completely, which, directly, does not result in additional
emissions releases. Although emissions from additional VMT as a result
of re-routing are foreseeable, under the definition of `indirect
emissions' in 40 CFR 93.152, FMCSA and PHMSA lack the ability to
control emissions and do not have continuing program responsibility,
two of the four criteria that must be met. Therefore, this action is
exempt from the CAA's general conformity requirement because it would
not affect the amount of direct or indirect emissions.\15\ Moreover,
based
[[Page 58923]]
on FMCSA's and PHMSA's analysis, it is reasonably foreseeable that the
action would not significantly increase total regulated motor vehicle
mileage, nor would it change how these vehicles operate, or the vehicle
fleet mix of motor carriers.
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\15\ See EPA's April 5, 2010 final rule ``Revisions to the
General Conformity Regulations.'' Also included are EPA's detailed
discussion and clarification of its definitions of direct and
indirect emissions at 75 FR 17254, 17260.
---------------------------------------------------------------------------
FMCSA and PHMSA conclude that the rule changes would have a
negligible impact on the quality of several environmental components
described in the EA and therefore would not require an Environmental
Impact Statement. Subsequently, FMCSA and PHMSA are issuing a Finding
of No Significant Impact with regard to potential environmental impact
of this action.
A copy of the joint FMCSA and PHMSA Final Environmental Assessment
(Final EA) is included in both dockets, FMCSA-2006-25660 and PHMSA-
2010-0319 (HM-255). FMCSA and PHMSA sought public comment on its draft
environmental assessment and received no comments about it.
Executive Order 12898 (Environmental Justice)
FMCSA and PHMSA evaluated the environmental effects of this final
rule in accordance with Executive Order 12898 and determined 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 the
Agencies' EA, discussed under NEPA, would result in high and adverse
environmental impacts.
Executive Order 13045 (Protection of Children)
FMCSA and PHMSA analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies have determined this rule does not create an
environmental risk to health or safety that may disproportionately
affect children. None of the alternatives analyzed in the Agencies' EA,
discussed under NEPA, result in environmental risk to health or safety
disproportionately affecting children.
Executive Order 13175 (Consultation and Coordination With Indian Tribal
Governments)
FMCSA and PHMSA analyzed this rulemaking in accordance with the
principles and criteria in Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments. This rulemaking is
required by law and does not significantly or uniquely affect the
communities of the Indian tribal governments or impose substantial
direct compliance costs on tribal governments. Thus, the funding and
consultation requirements of E.O. 13175 do not apply and no tribal
summary impact statement is required.
Executive Order 13211 (Energy Effects)
FMCSA and PHMSA analyzed this action under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution or Use. FMCSA and PHMSA determined that it will not be a
``significant energy action'' under that Executive Order because it
will not be economically significant and will 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 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
0
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); sec. 32509 of Pub. L. 112-141, 126
Stat. 405, 805 (2012); 49 CFR 1.97.
0
2. Section 177.804 is revised to read as follows:
Sec. 177.804 Compliance with Federal Motor Carrier Safety
Regulations.
(a) General. Motor carriers and other persons subject to this part
must comply with 49 CFR part 383 and 49 CFR parts 390 through 397
(excluding Sec. Sec. 397.3 and 397.9) to the extent those regulations
apply.
(b) Additional prohibitions. A person transporting a quantity of
hazardous materials requiring placarding under 49 CFR part 172 or any
quantity of a material listed as a select agent or toxin in 42 CFR part
73:
(1) Must comply with the safe clearance requirements for highway-
rail grade crossings in Sec. 392.12 of this title;
(2) May not engage in, allow, or require texting while driving, in
accordance with Sec. 392.80 of this title; and
(3) May not engage in, allow, or require the use of a hand-held
mobile telephone while driving, in accordance with Sec. 392.82 of this
title.
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
0
3. The authority citation for part 392 is revised to read as follows:
Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; Section
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by
sec. 32509 of Pub. L. 112-141, 126 Stat. 405, 805 (2012); and 49 CFR
1.87.
0
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 August 21, 2013 under authority
delegated in 49 CFR 1.97 (PHMSA) and 1.87 (FMCSA).
By the Pipeline and Hazardous Materials Safety Administration.
Cynthia L. Quarterman,
Administrator.
By the Federal Motor Carrier Safety Administration.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-23375 Filed 9-24-13; 8:45 am]
BILLING CODE 4910-EX-P
