Commercial Driver Disqualification Provision

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 383 and 384

[FHWA Docket No. FHWA-97-3103]

RIN 2125-AE28

Commercial Driver Disqualification Provision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA is proposing regulations specifying that commercial

motor vehicle (CMV) drivers who are convicted of violating laws or

regulations pertaining to railroad-highway grade crossings be

disqualified from operating a CMV. This proposal also would assess

penalties against employing motor carriers found to have knowingly

allowed, permitted, authorized, or required a driver to operate a CMV

in violation of laws or regulations pertaining to railroad-highway

grade crossings. This action is in response to the requirements

specified in section 403 of the ICC Termination Act (ICCTA) of 1995.

The purpose of this proposal is to enhance the safety of CMV operations

on our nation's highways.

DATES: Comments must be received on or before May 1, 1998.

ADDRESSES: Interested persons are invited to submit written, signed

comments regarding this proposal to Docket Clerk, U.S. DOT Dockets,

Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All

comments received will be available for examination at the above

address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except

Federal holidays. Those desiring notification of receipt of comments

must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT:

Mr. David Goettee, Driver Division, Office of Motor Carrier Research

and Standards, (202) 366-4001, or Mr. Charles Medalen, Office of the

Chief Counsel, (202) 366-0834, Federal

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Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.

Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow the instructions online for more information and

help.

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Federal Register

Electronic Bulletin Board Service at (202) 512-1661. Internet users may

reach the Federal Register's home page at: http://www.nara.gov/nara/

fedreg and the Government Printing Office's database at: http:///

www.access.gpo/su__ docs.

Background

The goal of section 403 of the ICCTA [Pub. L. 104-88, 109 Stat.

803, 956, December 29, 1995, codified at 49 U.S.C. 31310(h) and

31311(a)(18)] is to achieve safer CMV driver behavior when CMVs are

crossing railroad-highway grade crossings. Section 403 amended the

Commercial Motor Vehicle Safety Act (CMVSA) of 1986 by adding

subsection (h) to 49 U.S.C. 31310. The amendment requires sanctions and

penalties for CMV drivers who are convicted of violating laws or

regulations pertaining to railroad-highway grade crossings.

The amendment also requires monetary penalties be assessed against

employers found to have knowingly allowed, permitted, authorized, or

required an employee to operate a CMV in violation of a law or

regulation pertaining to railroad-highway grade crossings. It requires

States to adopt and enforce the Federal sanctions and penalties

prescribed for CMV drivers and employing motor carriers who violate

laws or regulations pertaining to railroad-highway grade crossings.

According to a March 1, 1996, U.S. Department of Transportation

report on railroad-highway grade crossing accidents for the year 1994,

entitled ``Accidents Which Shouldn't Happen,''\1\ 615 individuals were

killed and 1,961 persons were injured in 4,979 collisions with trains

at railroad-highway grade crossings in the United States. The same

report says:

\1\ ``Accidents Which Shouldn't Happen: A Report of the Grade

Crossing Safety Task Force to Secretary Federico Pena,'' March 1,

1996. This task force report has been placed in the public docket

for this rulemaking.

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Laws against grade crossing violations are ineffective if they

are not enforced and associated with penalties that are strong

enough to deter future violations. The public, enforcement officers,

and judges all need to be aware of the danger associated with grade

crossing violations. Grade crossing safety systems cannot prevent

collisions if the parties that use and control these crossings do

not act responsibly.

One of the recommendations in the report is that all States should

have or enact laws levying sanctions including fines and other

penalties against persons convicted of railroad-highway grade crossing

violations.

The follow-up report\2\ issued to report progress on implementation

of the recommendations contained in the above report observed:

\2\ ``Implementation Report of the USDOT Grade Crossing Safety

Task Force: Report to Secretary Rodney E. Slater,'' June 1, 1997,

publication number FHWA-SA-97-085. This task force report has been

placed in the public docket for this rulemaking.

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The principal finding of the Task Force report was that

``improved highway-rail grade crossing safety depends upon better

cooperation, communication, and education among responsible parties

if accidents and fatalities are to be reduced significantly.''

The FHWA believes the proposed changes contained in this NPRM will

be of assistance in fostering a change in how motor carriers perceive

the importance of railroad-highway grade crossings, and thus will

assist in achieving greater cooperation, communication, and education

regarding this important issue from the perspective of commercial

drivers and their employers.

Section Analysis

Section 383.37 Employer Responsibilities

Section 403 of the ICCTA prescribes a more stringent penalty for

employers regarding railroad-highway grade crossing violations than the

existing sanctions for employers using a driver while disqualified.

Because there is no specific prohibition in the current regulation to

which the prescribed sanction would apply, the FHWA proposes to add an

additional provision to 383.37 implementing this requirement.

Section 383.51 Disqualification of Drivers

Section 403 of the ICCTA requires the Secretary to establish, by

regulation, sanctions and penalties for drivers convicted of violating

railroad-highway grade crossing laws or regulations. The ICCTA requires

the penalty for a single violation to be not less than a 60-day

disqualification, but is silent on how to treat subsequent convictions.

Based on the precedents established for all other types of violations

which apply a longer penalty for subsequent convictions, and the

inherent authority to establish higher penalties for the violations

described, the FHWA proposes to revise 49 CFR 383.51 to provide an

increased period of disqualification for subsequent convictions.

In the context of other sanctions imposed in the CMVSA, violations

at railroad-highway grade crossings rank higher than other serious

traffic violations, which require sanctions of not less than a 60-day

disqualification for the second conviction and not less than a 120-day

disqualification thereafter. It is proposed therefore for a second or

subsequent conviction of a railroad-highway grade crossing violation,

the minimum disqualification period be 120 days. The FHWA proposes to

add a new paragraph (e) to 49 CFR 383.51 that specifically establishes

these driver penalties for this offense.

The ICCTA is also silent regarding the time limit between first and

subsequent violations. Referring again to the required sanctions for

serious traffic violations in 49 U.S.C. 31310(e), which employs a 3-

year period, the FHWA proposes that any subsequent conviction for

violation of a railroad-highway grade crossing law or regulation while

operating a CMV be within 3 years of an earlier conviction.

Section 383.53 Penalties

The ICCTA amendment to 49 U.S.C. 31310 specifically provides that

any motor carrier that knowingly allows, permits, authorizes, or

requires a driver to operate a CMV in violation of a law or regulation

pertaining to railroad-highway grade crossings must be subject to a

civil penalty of not more than $10,000. The maximum level specified in

the Act for this violation reflects the concern about the potentially

severe safety consequences that can result from an illegal crossing of

a railroad-highway grade crossing. The FHWA therefore proposes to add a

new paragraph (c) to the penalty provisions of 49 CFR 383.53 to

incorporate this sanction into this section.

Section 384.223 Railroad-Highway Grade Crossing Violation

As required by the ICCTA amendment to the CMVSA, the FHWA proposes

to include the requirement for the States to adopt and enforce the

sanctions and penalties relating to violations of

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railroad-highway grade crossing laws or regulations as specified at

Secs. 383.37, 383.51, land 383.53 as a new Sec. 384.223, Railroad-

highway grade crossing violation. Thus it is proposed as the twenty-

third State CDL program substantial compliance requirement. This

proposal follows the intent of the ICCTA which specified that States

must adopt and enforce the sanctions and penalties. For State

compliance purposes, existing laws or regulations that specifically

apply to violation of railroad-highway grade crossing restrictions,

such as reckless driving or driving to endanger, will be sufficient for

complying with this requirement, provided a conviction for these

offenses invokes the specified minimum disqualification periods.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable. In addition to late comments, the

FHWA will also continue to file in the docket relevant information that

becomes available after the comment closing date. Interested persons

should continue to examine the docket for new material. Nevertheless,

the FHWA may issue a final rule on this matter at any time after the

close of the comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this document does not contain a

significant regulatory action under Executive Order 12866 or a

significant regulation under the regulatory policies and procedures of

the Department of Transportation.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act)

requires each agency to assess the effects of its regulatory actions on

State, local, and tribal governments and the private sector. Any agency

promulgating an NPRM likely to result in a Federal mandate requiring

expenditures by a State, local, or tribal government or by the private

sector of $100 million or more in any one year must prepare a written

statement incorporating various assessments, estimates, and

descriptions that are delineated in the Unfunded Mandates Act. The FHWA

has determined that the changes proposed in this NPRM will not have an

impact of $100 million or more in any one year.

Each of the proposed changes is a small incremental addition to an

existing process. Drivers are already being disqualified as a matter of

course when convicted of certain violations. This merely proposes to

standardize the minimum amount of disqualification drivers must receive

for violating existing laws or regulations pertaining to railroad-

highway grade crossings.

There is a potential one-time minor cost to States that may need to

modify existing laws to incorporate these proposed standardized

railroad-highway grade crossing provisions. The ongoing costs of being

in substantial compliance with the provisions in this NPRM are part of

an existing State monitoring program, and therefore will have very

little impact on ongoing State operations.

Regulatory Flexibility Act

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

612), the FHWA has evaluated the effects of this proposed rule on small

entities. Based on the evaluation, the FHWA hereby certifies that this

proposed action would not have a significant economic impact on a

substantial number of small entities. This is based on the fact that

the FHWA believes the overwhelming majority of carriers, including

small carriers, comply with railroad-highway grade crossing laws and

regulations. Further, the FHWA believes that the adoption of this

proposed rule establishing driver disqualification and employer civil

penalties will serve as a further deterrent for drivers and/or carriers

who might otherwise have violated such laws or regulations.

Accordingly, the FHWA believes the actual imposition of these fines and

disqualifications will be infrequently required.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, which directs departments

and agencies to be guided by certain fundamental federalism principles

in formulating and implementing policies that have federalism

implications. These policies, together with the directions of the

CMVSA, have been taken fully into account in the development of this

proposal.

The federalism implications of the commercial driver's license

program were addressed in detail in the rule which established the

initial minimum standards (53 FR 27628, Thursday, July 21, 1988). A

summary of the points covered in that rule includes:

(a) The Congress determined that minimum Federal standards were

required because medium and heavy trucks are involved in a

disproportionately large percentage of fatal accidents. The States were

carefully consulted in establishing the minimum standards that were

established.

(b) The safety problem associated with CMVs is national in scope,

requiring a consistent and reciprocal approach to licensing, which

retained the basic role of the States in issuing licenses.

(c) The standard adopted deliberately allowed maximum flexibility

to the States in implementation of this program.

Thus, it is certified that the specifications contained in this

document have been assessed in light of the principles, criteria, and

requirements of the Federalism Executive Order, and they accord fully

with the letter and spirit of the President's Federalism initiative.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities to not apply to this program.

Paperwork Reduction Act

For purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.

3501-3520, this action contains no information requirements not already

approved for the CDL program and its associated information system, the

commercial driver's license information system (CDLIS).

National Environmental Policy Act

The FHWA has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4211 et seq.) and has

determined that this action would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

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List of Subjects in 49 CFR Parts 383 and 384

Commercial driver's license, Commercial motor vehicles, Highways

and roads, Motor carriers, Motor vehicle safety, and Railroad-highway

grade crossing.

Issued: February 23, 1998.

Kenneth R. Wykle,

Administrator, Federal Highway Administration.

In consideration of the foregoing, the FHWA hereby proposes to

amend Title 49, Code of Federal Regulations, Chapter III, as set forth

below.

PART 383--[AMENDED]

1. The authority citation for 49 CFR Part 383 is revised to read as

follows:

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

1.48.

2. Section 383.37 is revised to read as follows:

Sec. 383.37 Employer responsibilities.

No employer may knowingly allow, require, permit, or authorize a

driver to operate a CMV in the United States:

(a) During any period in which the driver has a CMV driver's

license suspended, revoked, or canceled by a State, has lost the right

to operate a CMV in a State, or has been disqualified from operating a

CMV;

(b) During any period in which the driver has more than one CMV

driver's license, except during the 10-day period beginning on the date

such driver is issued a driver's license;

(c) During any period in which the driver, or the CMV he or she is

driving, or the motor carrier operation, is subject to an out-of-

service order; or

(d) In violation of a law or regulation pertaining to railroad-

highway grade crossings.

3. In Sec. 383.51, paragraph (e) is redesignated as paragraph (f),

and a new paragraph (e) is added to read as follows:

Sec. 383.51 Disqualification of drivers.

* * * * *

(e) Disqualification for railroad-highway grade crossing

violation--(1) General rule. A driver who is convicted of operating a

CMV in violation of a law or regulation pertaining to railroad-highway

grade crossings must be disqualified for the period of time specified

in paragraph (e)(2) of this section.

(2) Duration of disqualification for railroad-highway grade

crossing violation--(i) First violation. A driver must be disqualified

for not less than 60 days, if the driver is convicted of a first

violation of a railroad-highway grade crossing violation.

(ii) Second or subsequent violation. A driver must be disqualified

for not less than 120 days, if during any 3-year period, the driver is

convicted of a second or subsequent railroad-highway grade crossing

violation in separate incidents.

(f) * * *

4. Section 383.53 is amended by adding a new paragraph (c) to read

as follows:

Sec. 383.53 Penalties.

* * * * *

(c) Special penalties pertaining to railroad-highway grade crossing

violations. An employer who is convicted of a violation of

Sec. 383.37(d) must be subject to a civil penalty of not more than

$10,000.

PART 384--[AMENDED]

5. The authority citation for 49 CFR Part 384 continues to read as

follows:

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

1.48.

6. Part 384 is amended by adding Sec. 384.223 to read as follows:

Sec. 384.223 Railroad-highway grade crossing violation.

The State must have and enforce laws and/or regulations applicable

to CMV drivers and their employers, as defined in Sec. 383.5 of this

title, which meet the minimum requirements of Secs. 383.37(d),

383.51(e), and 383.53(c) of this title.

[FR Doc. 98-5097 Filed 2-27-98; 8:45 am]

BILLING CODE 4910-22-M