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: Final rule.

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SUMMARY: The FHWA revises its regulations to require that commercial

motor vehicle (CMV) drivers who are convicted of violating Federal,

State, or local laws or regulations pertaining to railroad-highway

grade crossings be disqualified from operating a CMV. Penalties also

will be assessed against

[[Page 48105]]

employing motor carriers found to have knowingly allowed, permitted,

authorized, or required a driver to operate a CMV in violation of laws

or regulations pertaining to railroad-highway grade crossings. This

final rule completes an action initiated in response to the

requirements specified in section 403 of the ICC Termination Act

(ICCTA) of 1995. The purpose of this action is to enhance the safety of

CMV operations on our nation's highways.

EFFECTIVE DATE: October 4, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. David Goettee, Driver Division,

Office of Motor Carrier Research and Standards, (202) 366-4001, or Mr.

Charles Medalen, Office of the Chief Counsel, (202) 366-1354, Federal

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

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

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded using a

computer, modem and suitable communications software from the

Government Printing Office's Electronic Bulletin Board Service at (202)

512-1661. Internet users may reach the Office of the Federal Register's

home page at: http://www.nara.gov/fedreg and the Government Printing

Office's web page at: http://www.access.gpo.gov/nara.

Background

This final rule completes action initiated under section 403 of the

ICCTA (Pub. L. 104-88, 109 Stat. 803, 956, December 29, 1995, codified

at 49 U.S.C. 31310(h) and 31311(a)(18)) to achieve safer CMV driver

behavior when CMVs are crossing railroad-highway grade crossings.

Section 403 amended the Commercial Motor Vehicle Safety Act (CMVSA) of

1986, Pub. L. 99-570, 100 Stat. 3207-170, by adding subsection (h) to

49 U.S.C. 31310. The amendment requires sanctions and penalties for CMV

drivers who are convicted of violating laws or regulations pertaining

to railroad-highway grade crossings.

The amendment also requires that monetary penalties be assessed

against employers found to have knowingly allowed, permitted,

authorized, or required an employee to operate a CMV in violation of a

law or regulation pertaining to railroad-highway grade crossings. It

requires States to adopt and enforce the Federal sanctions and

penalties prescribed for CMV drivers and employing motor carriers who

violate laws or regulations pertaining to railroad-highway grade

crossings.

The FHWA published a notice of proposed rulemaking (NPRM) in the

Federal Register on March 2, 1998, (63 FR 10180) to request comment on

the proposed changes to 49 CFR Parts 383 and 384 in regard to

violations of railroad-highway grade crossing by drivers operating

CMVs. The comment period closed on May 1, 1998.

Discussion of Petitions

The FHWA received five petitions between April 23, 1998, and May 1,

1998, to extend the comment period for the NPRM. The FHWA has decided

not to grant an extension because it believes the petitioners were

given more than adequate time to provide additional data to the docket.

Shell Oil Products Company and Linden Bulk Transportation Company

believed more time was necessary to examine this subject. In particular

they wished to know if the proposed rule would apply only to the

Federal regulations at 49 CFR 392.10 and 392.11, or if it would apply

to all traffic laws of any jurisdiction. They also wanted to know what

protection a motor carrier has in the event a driver violates such a

law or regulation.

Textile Chemical Company asked the same questions as Shell and

Linden. The Company also asked: ``If a carrier provides training under

HM-126F requirements for drivers concerning railroad crossings and

documents such training, would this action protect the carrier from

violating the proposed 49 CFR 383.37(d), if no complicity in the

violation was discovered?''

North American Transportation Consultants wanted the same

information as requested by the Textile Chemical. They also asked

whether railroad-highway grade crossing safety violations were required

to be compatible with 49 CFR 392.10 and 392.11 to preserve uniformity.

If so, would the FHWA establish a review system to approve or reject

local laws covered under this proposal? They proposed to gather and

submit information to the docket regarding various local laws and

ordinances associated with railroad-highway grade crossing

requirements, and asked that the comment period be extended at least 90

days to accomplish those tasks.

Decker Transport Company asked the same questions but inquired more

specifically how local laws that conflict with the provisions of 49 CFR

392.10 would be handled. They proposed to gather and submit to the

docket information concerning various local laws and ordinances

associated with railroad-highway grade crossing requirements.

All five petitioners either wanted more time to collect data

regarding variations in State and local laws and regulations regarding

railroad-highway grade crossings, or additional information to help

them understand the scope of the rulemaking. It is unclear to the FHWA

how the data to be collected would be relevant to the specifications

contained in the ICCTA of 1995. In any case, no such information was

provided to the docket. The additional information requested in the

petitions is given below in a question and answer format.

Question: What regulations and laws are included under the proposed

new regulation?

Response: This final rule specifically covers convictions for six

types of offenses, including failing to slow down, stop, check for

clear track, obey traffic control devices or law enforcement officials.

Also included are crossing without having sufficient undercarriage

clearance or sufficient space on the other side to clear the track

without stopping. It does not matter whether the offense involves

Federal, State, or local laws or regulations regarding railroad-highway

operations.

Question: Are there any proposed Federal fines for drivers who are

convicted of such a violation?

Response: No. This rule follows the process established by the

Commercial Motor Vehicle Safety Act of 1986. It sets a minimum

disqualification period for a driver convicted of one of these six

offenses. Any fines or penalties are left to the discretion of the

convicting jurisdiction.

Due to the seriousness of this offense, Congress mandated that an

employer be subject to a civil penalty of up to $10,000, if the

employer knowingly allows, requires, permits, or authorizes a driver to

violate laws or regulations pertaining to railroad-highway grade

crossings.

Question: Will the FHWA establish a review system to achieve

compatibility of State and local laws and regulations with 49 CFR

392.10 and 392.11 regarding railroad-highway grade crossing violations?

Response: The FHWA has a system under 49 CFR part 350 of the

Federal Motor Carrier Safety Regulations (FMCSRs) that requires the

States to have laws and regulations compatible with the Federal

regulations. Under 49 CFR 350.15, States must certify annually that

they are enforcing the FMCSRs or compatible State laws. Section 355.21

also requires States to review their laws for compatibility every year,

and

[[Page 48106]]

Sec. 355.23 requires them to submit the results of the review along

with the annual State Enforcement Plan. Failure to adopt State laws and

regulations that are compatible with 49 CFR 392.10 and 392.11 can

result in a loss of Motor Carrier Safety Assistance Program funds.

Failure of the States to adopt the penalties specified by 49 U.S.C.

31310(h) and this rule can result in the withholding of certain

Federal-aid funds under 49 U.S.C. 31314 for not being in substantial

compliance with the CDL program requirements.

Question: If a local law or regulation contradicts the provisions

of 49 CFR 392.10, is that law or regulation covered by this rule?

Response: See the previous question. The answer to that question

also applies to this one.

Question: If a driver violates a law or regulation, how is it

determined if the employer is also in violation?

Response: As previously established in 49 CFR 383.37 for other

employer responsibilities under the CDL program, it must be proven that

the employer knowingly allowed, required, permitted, or authorized a

driver to violate the law or regulation.

Question: Why isn't violation of a railroad-highway grade crossing

law or regulation being included as an addition to the existing CDL

serious traffic violations?

Response: These convictions have different conditions for

disqualification as specified in the ICCTA. The offenses classified as

serious traffic violations require a second conviction before a driver

receives at least a 60-day disqualification. Under this rule, a

conviction for a violation of any railroad-highway grade crossing law

or regulation requires at least a 60-day disqualification for a first

conviction.

Question: Why doesn't this rule address other railroad-grade

crossing issues?

Response: This rule was developed only to carry out the statutory

requirements in section 403 of the ICCTA.

The NPRM stated that comments received after the comment closing

date would be filed in the docket and considered to the extent

practicable in developing the final rule. No new data or comments were

filed in the docket after the initial 23 submissions. The FHWA believes

it has given the petitioners more than adequate time to provide their

additional data since the docket closed on May 1, 1998. This is more

time than a formal extension of the comment period would have provided.

Based on this fact and the responses given above to questions raised by

the petitioners, the FHWA has decided to deny the five petitioners'

request for a formal extension of the comment period for the NPRM.

Discussion of Comments

List of Commenters

Comments to the docket on the NPRM were received from 23 States,

individuals, companies, and organizations as follows:

Five States (Colorado Department of Public Safety, Missouri Department

of Revenue, California Highway Patrol, Florida Department of Highway

Safety, Wisconsin Department of Transportation);

Three individuals (Steven A. Tudor, E. Lowell Lewis, E. A. Brown);

Nine Companies (Decker Transport Company; Farmland Industries, Inc.;

Federal Express Corporation; Grammer Industries, Inc.; Linden Bulk

Transportation; National Railroad Passenger Corporation; Phibro-Tech;

Shell Oil Products Company; Textile Chemical Company);

Four associations (American Trucking Associations (ATA), National

Association of Railroad Passengers, Owner Operator Independent Drivers

Association, Truckload Carriers Association);

One safety advocacy group (Advocates for Highway and Auto Safety); and

One consultant (North American Transportation Consultants).

Commenters in Favor of Rule

Three commenters (National Association of Railroad Passengers,

Advocates for Highway and Auto Safety, and National Railroad Passenger

Corporation (Amtrak)) strongly supported all the provisions of the

rule.

Comments by Petitioners

The questions and issues raised by the five petitioners (Shell Oil

Products Company, Linden Bulk Transportation Company, Textile Chemical

Company, North American Transportation Consultants, Decker Transport

Company) requesting an extension of the comment period are addressed in

the ``Discussion of Petitions'' section of this preamble.

Proposal Too Broad

A significant concern raised by many of the commenters either

directly through their comments or through their questions asking for

clarification was that the wording of the offenses to be covered is too

vague. For example, Decker Transport Company asked for clarification

regarding which Federal and/or local regulations constitute a violation

covered under this rule. It felt the language in the NPRM was too vague

and open to abuse. Similar comments were expressed by the other

commenters.

Farmland Industries, the Truckload Carriers Association, and ATA

expressed concern about motor carriers being charged when drivers

violated railroad-highway grade crossing laws or regulations. Farmland

Industries stated that it would be unfair to apply penalties to motor

carriers when drivers violate company policy requiring them to comply

with railroad-highway grade crossing rules and regulations.

FHWA Response

The FHWA agrees with the commenters that the language defining a

railroad-highway grade crossing violation needs to be more specific.

The final rule therefore lists six offenses under Sec. 383.51(e) that

pertain to a railroad-highway grade crossing. The FHWA believes that

this change will make the final rule more enforceable and more likely

to achieve the intended legislative effect.

The FHWA does not agree that motor carriers are being treated

unfairly under this rule. Motor carriers are treated the same as under

the existing provisions of Sec. 383.37 that cover offenses for using a

disqualified driver, a driver with more than one license, or using a

driver while he or she has been ordered out of service. The key wording

in all of these offenses, including the new one for railroad-highway

grade crossings, is that the motor carrier must ``. . . knowingly

allow, require, permit, or authorize a driver to operate a CMV . . .''

A motor carrier is not guilty of a ``knowing'' violation simply because

one of its drivers violates a railroad-highway grade crossing law or

regulation. The penalty can only be imposed if it can be shown that the

motor carrier knew, or should have known, of the driver's violation

because it actually ordered or authorized him or her to ignore the

grade crossing laws or regulations, or because the motor carrier, after

learning of previous violations by drivers, failed to take action to

prevent them from happening again.

Abandoned Tracks

Five commenters (Grammer Industries, Farmland Industries, E. Lowell

Lewis, Truckload Carriers Association, ATA) expressed concern about the

many abandoned railroad tracks around the country that are not marked

as such with a sign. A driver could be disqualified for not stopping at

[[Page 48107]]

the grade crossing of these abandoned tracks. The commenters want the

railroads or the Federal Railroad Administration to identify these

abandoned tracks with highway signs.

FHWA Response

Under 49 CFR 392.10(b)(4), a railroad track is considered to be

abandoned only if it is so signed. This rule makes the failure to stop

at a grade crossing that is still considered to be active a CDL

disqualifying offense. While the FHWA agrees that abandoned tracks

should be so marked, the decision to declare tracks abandoned and erect

a sign declaring them abandoned is a process involving the railroads

and the States. This issue is outside of the scope of this rule.

Responsibilities of Railroads

Three commenters (Farmland Industries, Federal Express, Owner

Operator Independent Drivers Association) expressed the concern that

many of the problems at grade crossings are the responsibility of the

railroads which should provide warning devices and better signing at

all active grade crossings.

FHWA Response

This rule is only one part of a concerted effort to improve safety

at railroad-highway grade crossings. Other actions are being

implemented to provide better grade crossing safety through a

cooperative effort of the FHWA, Federal Railroad Administration (FRA),

National Highway Traffic Safety Administration, the railroads and

public interest groups.

Just in the past five years, crashes have been reduced by 30

percent and fatalities by 33 percent through the closing of some at-

grade railroad-highway crossings, grade separation of rails and

highways, better engineering of highways, more effective signage,

warning devices that use the latest technology such as four way gates,

train-borne devices to provide audible and visual warning of the

train's approach and public education programs.

Serious Traffic Violations

The Colorado Department of Public Safety and the Missouri

Department of Revenue stated that violations of railroad-highway grade

crossing laws and regulations should be included in the existing

category of serious traffic violations rather than creating a new

category of violations.

E. A. Brown, a Florida police officer, stated that railroad-highway

safety grade crossing violations should be treated the same as other

serious traffic safety violations because minor crossing violations are

in fact less serious than a violation such as reckless driving.

FHWA Response

Convictions for serious traffic violations such as speeding in

excess of 15 miles per hour over the posted speed limit, improper or

erratic traffic lane changes, or following the vehicle ahead too

closely only lead to a driver disqualification if two or more

convictions occur in separate incidents. The ICCTA specifically

requires disqualification upon a first conviction of a violation of

railroad-highway grade crossing safety laws or regulations.

Grade crossing violations can cause death and injury on a large

scale. The agency has therefore established a separate category of

violations and sanctions that reflects the intent of Congress in the

ICCTA by requiring a driver disqualification on the first conviction.

Traffic Jams and Rear-End Collisions

Grammer Industries stated that the growth of towns in the vicinity

of railroad-highway grade crossings has created engineering problems.

The commenter stated that when CMVs stop at a railroad-highway grade

crossing, they create traffic jams. Both Grammer Industries and

Farmland Industries felt that these vehicles, when stopped on the

highway, cause rear-end collisions. The Truckload Carriers Association

stated that slowing down or stopping at railroad-highway grade

crossings could significantly disrupt the flow of traffic and be

deadly.

The Truckload Carriers Association, ATA, and Federal Express

Corporation support the elimination of a stopping requirement at all

actively-controlled grade crossings.

The California Highway Patrol stated that requiring CMVs to stop or

slow down at railroad-highway grade crossings poses a greater safety

risk to the public.

The Owner Operator Independent Drivers Association (OOIDA) stated

that the FHWA has failed to provide statistics on the number of rear-

end collisions at railroad-highway grade crossings that were due to

vehicles rear-ending CMVs that had stopped even though there was no

train present. The OOIDA also believes that this final rule will

increase the risk of rear-end collisions and gridlock because CMV

drivers will be stopping at every railroad-highway crossing to protect

their CDL.

FHWA Response

The FHWA is not entertaining any changes to 49 CFR 392.10 and

392.11 in this rulemaking. The ICCTA and this rule only require the

States to impose sanctions and penalties for CMV operators convicted of

violations of railroad-highway grade crossing laws or regulations which

are at least as stringent as the requirements of this rulemaking.

This rulemaking will not increase the number of rear-end collisions

since no changes are being made to the current railroad-highway grade

crossings requirements for CMV drivers. Whether stopping at a railroad-

highway grade crossing can be more of a safety problem than not

stopping, was addressed in more detail in the June 18, 1998, final

notice on ``Review of the Federal Motor Carrier Safety Regulations;

Regulatory Removals and Substantive Amendments'' (63 FR 33254).

Current Prohibitions Adequate

The Colorado Department of Public Safety and the Missouri

Department of Revenue believe that the existing requirements in 49 CFR

392.10 and 392.11 adequately address the railroad-highway grade

crossing safety issue.

The California Highway Patrol (CHP) opposes any new requirements

that would require the State of California to legislate stricter laws

and harsher penalties against drivers who violate railroad-highway

grade crossing laws and regulations and civil penalties against

employers. Motor carriers transporting passengers or placarded

hazardous materials are the only vehicles required to stop at railroad-

highway grade crossings. The CHP believes the hazardous materials

industry has the best safety record in California.

The Wisconsin Department of Transportation states that its data

does not indicate that CMV drivers are over represented in crashes or

citations issued involving railroad-highway grade crossings.

FHWA Response

The FHWA agrees that the existing Federal requirements in 49 CFR

392.10 and 392.11 adequately address the railroad-highway grade

crossing safety issue, but only from the standpoint of prohibitions and

their related fines; not sanctions and penalties. The minimum period of

disqualification for a driver and the maximum fine to be levied against

a motor carrier in this rule reflect FHWA's concern about the

potentially severe safety consequences, including loss of life, that

may result

[[Page 48108]]

from the violation of a railroad-highway grade crossing law or

regulation. The FHWA believes most States currently have laws and

regulations regarding violations at railroad-highway grade crossings by

any driver, commercial or non-commercial, but that State law may only

require fines. As is the case with other CDL disqualifying offenses,

the CDL driver should be held to a higher standard than other drivers

due to the potential for injuries and loss of life in a crash between a

CMV and a train. The FHWA acknowledges that there are far more

violations by non-CDL drivers at railroad-highway grade crossings, but

the severity of a crash, in injuries, fatalities, and property damage,

is far greater when a commercial vehicle is involved.

State Legislative Changes

The Missouri Department of Revenue states that because the rule

does not follow the provisions of serious traffic violations, the State

must pass new legislation. The Wisconsin Department of Transportation

stated that this rule will require legislative and information system

changes.

FHWA Response

The ICCTA requires disqualification upon a first conviction of a

violation of railroad-highway grade crossing safety laws or

regulations. For this reason, the FHWA cannot include these offenses

under the serious traffic violation category which requires two

convictions before a driver can be disqualified.

As discussed in the ``Substantial Compliance'' section of the

preamble, the FHWA acknowledges that the complexity of revising State

legislation and establishing procedures to incorporate the new

requirements into existing systems will require time. The FHWA is

therefore allowing three years after the effective date of the rule for

the States to come into substantial compliance with these new

requirements.

Severity of Sanctions and Penalties

The Owner Operator Independent Drivers Association strongly opposes

the rulemaking because it will not substantially improve highway

safety. The rule will have a substantial effect on small business

owners. Owner-operators may have to defend themselves against a $10,000

fine because they are ``employers'' as well as drivers. They also

stated that the penalties are too severe given the number or severity

of collisions between trains and CMVs. Only a conviction for ignoring a

railroad-highway safety grade crossing signal device should be

disqualifying.

The Colorado Department of Public Safety stated that

disqualification should not include a conviction for stopping too close

to a railroad-highway grade crossing.

The Truckload Carriers Association stated that drivers who violate

railroad-highway grade crossing laws or regulations after making a

``good faith'' effort to comply with such regulations should not be

penalized.

The Florida Department of Highway Safety and Motor Vehicles stated

that the penalties are too severe. This commenter believes drivers

should only be subject to fines on a first offense, not a

disqualification. Drivers should be disqualified for a second

conviction.

Mr. E. Lowell Lewis stated that fines and duration of driver

license disqualification are excessively high for a violation at an

unmarked abandoned railroad-highway grade crossing.

Grammer Industries believes that the potential fines are out of

proportion to other serious traffic violations. They stated that road

rage is a more important problem and should be addressed instead of

railroad-highway grade crossing violations.

E. A. Brown, a police officer, stated that the majority of

railroad-highway safety grade crossing violations do not endanger

safety.

The Owner Operator Independent Drivers Association stated that the

combination of up to a $10,000 penalty as an employer for the first

conviction, and the loss of revenue for the length of the

disqualification as a driver, will put owner/operators out of business.

Further, because they are owner/operators, it will be a hardship for

them to be able to make a court appearance to defend themselves.

The Colorado Department of Public Safety believes that

disqualification for disobeying a railroad-highway grade crossing

requirement would cause drivers to plea bargain down to a non-serious

offense.

The Advocates for Highway and Auto Safety (AHAS) recommend that a

one year penalty be established for third and subsequent violations of

railroad-highway grade crossings because of the especially severe

nature of railroad-highway grade crossing violations. They also

recommended that the time limit for compiling two or more convictions

be increased from three to five years.

FHWA Response

As stated previously, the minimum period of disqualification and

the maximum fine levied in this rule reflect the concern of the

Congress and the FHWA about the potentially severe safety consequences,

including loss of life, that may result from a violation of a railroad-

highway grade crossing law or regulation. As discussed later in the

Section Analysis under Sec. 383.51, Disqualification of Drivers, the

FHWA agrees with AHAS that the potentially severe consequences of this

violation warrant a one year disqualification period for a third or

subsequent conviction over a three year period.

This final rule requires a penalty of not more than $10,000 to be

assessed against a motor carrier who is convicted of knowingly allowing

a driver to commit a railroad-highway safety grade crossing violation.

The rule allows for flexibility in assessing the penalty based on the

severity of the offense and the circumstances involved in the incident.

The FHWA believes that the issue of ``good faith effort'' and other

mitigating circumstances should be left to the discretion of the judge

or administrative hearing officer.

Changes to Current Regulations

The ATA state that the FHWA should eliminate the prohibition

against changing gears while crossing railroad tracks. The ATA and

Federal Express Corporation believe that the Agency should require

States to change their railroad-highway grade crossing laws and

regulations to be in conformity with the Federal requirements.

Railroad-highway grade crossing regulations should be uniform for both

CMVs and non-CMVs.

FHWA Response

All of the suggestions for changing current regulations related to

railroad-highway grade crossings are outside of the scope of this

rulemaking. The purpose of this rule is to implement the requirements

of section 403 of the ICCTA.

If the commenters feel there is a need to change current

regulations, they should submit to the FHWA a formal petition for

rulemaking along with supporting documentation and justifications.

Substantial Compliance

Section 403(c) of the ICCTA , codified at 49 U.S.C. 31311(a)(18),

adds to the list of conditions necessary to achieve substantial

compliance, the adoption and enforcement of FHWA sanctions and

penalties for violations of laws and regulations pertaining to

railroad-highway grade crossings. Substantial compliance is required to

avoid having apportioned Federal-aid highway funds withheld. The FHWA

understands the complexity of revising State legislation

[[Page 48109]]

and establishing procedures to incorporate the new requirements into

existing systems. The FHWA is therefore setting the deadline for

achieving substantial compliance with this 23rd requirement for State

participation in the CDL program as no later than three years after the

effective date of this rule.

Federal Enforcement

While the States are being given up to 3 years to implement these

new disqualifying offenses, the FHWA has the authority, and will

continue to exercise its authority to subject drivers and motor

carriers operating in interstate commerce to the appropriate civil or

criminal penalties if they are found guilty of violating any of the

Federal prohibitions defined in 49 CFR 392.10 and 392.11.

Section Analysis

Section 383.21 Number of Drivers' Licenses

Section 4011(b)(1) of the Transportation Equity Act for the 21st

Century [Pub. L. 105-178, 112 Stat. 107, 407, June 9, 1998, codified at

49 U.S.C. 31302] removed the exception in Sec. 383.21(b)(1) allowing a

driver to hold more than one driver's license during the 10-day period

beginning on the date the CDL is issued. This section is revised to

reflect this change and to remove the obsolete exception in

Sec. 383.21(b)(2) allowing more than one driver's license if a State

required it; that exception has been invalid since January 1, 1990.

Section 383.37 Employer Responsibilities

Section 403 of the ICCTA prescribes a more stringent penalty for

employers who knowingly require or allow railroad-highway grade

crossing violations than the existing sanctions imposed on employers

using a driver while disqualified. Because there is no specific

prohibition in the current regulation to which the prescribed sanction

would apply, a provision is added to Sec. 383.37 implementing this

requirement.

Section 383.51 Disqualification of Drivers

Section 403 of the ICCTA requires the Secretary to establish by

regulation, sanctions and penalties for drivers convicted of violating

railroad-highway grade crossing laws or regulations.

While the ICCTA only refers in general to violations of laws and

regulations pertaining to railroad-highway grade crossings, the FHWA,

as explained earlier in this preamble, agrees with the commenters that

the violations should be more specific, in keeping with the

descriptions of other CDL major and serious traffic violations under 49

CFR 383.51. Six categories of violations are added to paragraph (e)(1)

of this section to provide more specificity to the violations.

The ICCTA requires the penalty for a single violation to be not

less than a 60-day disqualification, but is silent on how to treat

subsequent convictions. Based on the precedents established for all

other types of violations which apply a longer penalty for subsequent

convictions, and the inherent authority to establish higher penalties

for the violations described, 49 CFR 383.51 is amended to provide an

increased period of disqualification for subsequent convictions.

Compared to other sanctions imposed in the CMVSA, violations at

railroad-highway grade crossings rank higher than serious traffic

violations, which require no sanction for a first conviction and

disqualifications of not less than 60 days for the second conviction

and not less than 120 days for a third or subsequent conviction. The

FHWA initially believed a two tier sanctioning system with a minimum

disqualification period of 60 days for a first conviction and 120 days

for a second or subsequent conviction was a reasonable penalty

structure for convictions of railroad-highway grade crossing

violations. That was the proposal published in the NPRM. However, based

on the severity of the railroad-highway grade crossing crashes

involving commercial motor vehicles that have taken place in recent

months, including the crashes in Illinois and Texas, the FHWA believes

there is a need for a stronger penalty deterrent. As recommended by the

Advocates for Highway and Auto Safety and the Federal Railroad

Administration, the FHWA is revising the penalty structure to include a

one year penalty for third and subsequent convictions for violations of

railroad-highway grade crossing laws and regulations. The one year

disqualification for a third conviction will bring the penalties more

in line with the graduated penalty structure under 49 CFR 240.117 for

railroad engineers who fail to comply with requirements for the safe

operation of trains. These safety standards for railroad engineers are

comparable to commercial motor vehicle driver requirements, including

such offenses as failure to control a locomotive or train in accordance

with a signal indication that requires a complete stop before

proceeding, failure to adhere to speed limitations and occupying main

track without proper authority.

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

subsequent violations. Referring again to the sanctions required for

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

year period, a three-year period is also set for these violations. A

second conviction for a grade crossing violation in a CMV within a

three-year period will result in a disqualification of at least 120

days and a third or subsequent conviction within a three-year period

will result in a disqualification of at least one year.

Section 383.53 Penalties

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

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

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

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

civil penalty of not more than $10,000. This reflects congressional

concern about the potentially disastrous consequences of illegally

crossing a railroad track. The FHWA has therefore added a new paragraph

(c) to the penalty provisions of 49 CFR 383.53 to incorporate this

sanction.

Section 384.223 Railroad-Highway Grade Crossing Violation

As indicated in the ICCTA, the States are required to adopt and

enforce the sanctions and penalties relating to violations of railroad-

highway grade crossing laws or regulations codified in Secs. 383.37,

383.51, and 383.53. A new Sec. 384.223, Railroad-highway grade crossing

violation, is added to part 384 as the 23rd substantial compliance

requirement for State CDL programs. For State compliance purposes,

existing laws or regulations applicable to violation of railroad-

highway grade crossing restrictions, such as reckless driving or

driving to endanger, will be acceptable provided a conviction for these

offenses invokes at least the specified minimum disqualification

periods.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866 or a

significant regulation within the meaning of Department of

Transportation regulatory policies and procedures.

Regulatory Flexibility Act

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

612), the

[[Page 48110]]

FHWA has evaluated the effects of this rule on small entities. Based on

the evaluation, the FHWA believes the actual imposition of these fines

and disqualifications will be required only infrequently. This is based

on the fact that the FHWA believes the overwhelming majority of motor

carriers, including small carriers, currently instruct their drivers to

comply with all safety related laws and regulations, including those

pertaining to railroad-highway grade crossings. Further, the FHWA

believes this final rule establishing driver disqualification and

employer civil penalties will serve as a further deterrent for drivers

and/or carriers who might otherwise have violated such laws or

regulations. Accordingly, the FHWA hereby certifies that this action

will not have a significant economic impact on a substantial number of

small entities.

Unfunded Mandates Reform Act of 1995 and Executive Order 12875

(Enhancing the Intergovernmental Partnership)

This rule does not impose a Federal mandate resulting in the

expenditure by State, local, or tribal governments, in the aggregate,

or by the private sector, of $100 million or more in any one year. (2

U.S.C. 1531 et seq.).

Each of these final rule changes is a small incremental addition to

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

of course when convicted of certain violations. This merely

standardizes the minimum disqualification time drivers must receive for

violating existing laws or regulations pertaining to railroad-highway

grade crossings.

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

modify existing laws to incorporate these standardized railroad-highway

grade crossing provisions. The costs of being in substantial compliance

with the provisions in this final rule are part of an existing State

monitoring program, and therefore will have very little impact on

ongoing State operations.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2)

of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate

ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

We have analyzed this action under Executive Order 13045,

Protection of Children from Environmental Health Risks and Safety

Risks. This rule is not an economically significant rule and does not

concern an environmental risk to health or safety that may

disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise

have taking implications under E. O. 12630, Governmental Actions and

Interference with Constitutionally Protected Property Rights.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612 and it has been determined

that it will have significant implications for Federalism.

The federalism implications of the CDL program were addressed in

detail in the rule which established the initial minimum standards (53

FR 27628, Thursday, July 21, 1988). A summary of the points covered in

that rule follows:

(a) The Congress determined that minimum Federal standards were

required because medium and heavy trucks are involved in a

disproportionately large percentage of fatal accidents. The States were

carefully consulted in establishing the minimum standards adopted by

the FHWA.

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

requiring a consistent and reciprocal approach to licensing, which

retained the basic role of the States in issuing licenses.

(c) The standards adopted deliberately allowed maximum flexibility

to the States in implementation of this program.

Thus, it is certified that the specifications contained in this

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

requirements of the Federalism Executive Order, and they accord fully

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

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain information collection requirements

for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-

3520, that are not already approved for the CDL program and its

associated commercial driver's license information system (CDLIS).

National Environmental Policy Act

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

Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.)

and has determined that this action will not have any effect on the

quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

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

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

Unified Agenda.

List of Subjects in 49 CFR Parts 383 and 384

Commercial driver's license, Commercial motor vehicles, Motor

carriers, Motor vehicle safety, and Railroad-highway grade crossing.

Issued on: August 25, 1999.

Gloria J. Jeff,

Federal Highway Deputy Administrator.

In consideration of the foregoing, the FHWA hereby amends title 49,

Code of Federal Regulations, Chapter III, parts 383 and 384 as set

forth below.

PART 383--[AMENDED]

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

follows:

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

1.48.

2. Revise Sec. 383.21 to read as follows:

Sec. 383.21 Number of drivers' licenses.

No person who operates a commercial motor vehicle shall at any time

have more than one driver's license.

3. Revise Sec. 383.37 to read as follows:

Sec. 383.37 Employer responsibilities.

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

driver to operate a CMV in the United States:

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

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

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

CMV;

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

driver's license;

[[Page 48111]]

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

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

service order; or

(d) In violation of a Federal, State, or local law or regulation

pertaining to railroad-highway grade crossings.

4. Amend Sec. 383.51, to redesignate paragraph (e) as paragraph

(f), and to add a new paragraph (e) to read as follows:

Sec. 383.51. Disqualification of drivers.

* * * * *

(e) Disqualification for railroad-highway grade crossing

violation--

(1) General rule. A driver who is convicted of operating a CMV in

violation of a Federal, State, or local law or regulation pertaining to

one of the following six offenses at a railroad-highway grade crossing

must be disqualified for the period of time specified in paragraph

(e)(2) of this section:

(i) For drivers who are not required to always stop, failing to

slow down and check that the tracks are clear of an approaching train;

(ii) For drivers who are not required to always stop, failing to

stop before reaching the crossing, if the tracks are not clear;

(iii) For drivers who are always required to stop, failing to stop

before driving onto the crossing;

(iv) For all drivers, failing to have sufficient space to drive

completely through the crossing without stopping;

(v) For all drivers, failing to obey a traffic control device or

the directions of an enforcement official at the crossing;

(vi) For all drivers, failing to negotiate a crossing because of

insufficient undercarriage clearance.

(2) Duration of disqualification for railroad-highway grade

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

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

violation of a railroad-highway grade crossing violation.

(ii) Second violation. A driver must be disqualified for not less

than 120 days if, during any three-year period, the driver is convicted

of a second railroad-highway grade crossing violation in separate

incidents.

(iii) Third or subsequent violation. A driver must be disqualified

for not less than 1 year if, during any three-year period, the driver

is convicted of a third or subsequent railroad-highway grade crossing

violation in separate incidents.

* * * * *

5. Amend Sec. 383.53 to add a new paragraph (c) to read as follows:

Sec. 383.53. Penalties.

* * * * *

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

violations. An employer who is convicted of a violation of

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

$10,000.

PART 384--[AMENDED]

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

follows:

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

1.48.

7. Add Sec. 384.223 to read as follows:

Sec. 384.223 Railroad-highway grade crossing violation.

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

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

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

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

[FR Doc. 99-22900 Filed 9-1-99; 8:45 am]

BILLING CODE 4910-22-P