[Federal Register Volume 71, Number 82 (Friday, April 28, 2006)]
[Proposed Rules]
[Pages 25128-25130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6424]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 392

[Docket No. FMCSA-1998-4202]
RIN 2126-AA18


Railroad Grade Crossing Safety; Withdrawal

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Withdrawal of notice of proposed rulemaking.

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SUMMARY: FMCSA withdraws a July 30, 1998, Notice of Proposed Rulemaking 
(NPRM) that would have prohibited the driver of a commercial motor 
vehicle (CMV) from driving onto a highway-railroad grade crossing 
without sufficient space to drive completely through the crossing 
without stopping. The NPRM was issued in response to section 112 of the 
Hazardous Materials Transportation Authorization Act of 1994.
    After careful analysis and review of the comments, FMCSA has 
concluded

[[Page 25129]]

that the NPRM gave a misleading impression of the statutory mandate and 
the cost and complexity of complying with an implementing regulation. 
FMCSA is therefore withdrawing the 1998 NPRM in order to eliminate the 
confusion associated with this rulemaking. The agency, however, will 
issue a simpler and more clearly written new NPRM addressing the 
requirements of section 112.

DATES: The notice of proposed rulemaking published on July 30, 1998, at 
63 FR 40691, is withdrawn as of April 28, 2006.

FOR FURTHER INFORMATION CONTACT: Larry W. Minor, Director, Office of 
Bus and Truck Standards and Operations, (202) 366-4009, Federal Motor 
Carrier Safety Administration (MC-PS), 400--7th Street, SW., 
Washington, DC 20590; or [email protected].

SUPPLEMENTARY INFORMATION: 

How can you get a copy of this publication?

    You can visit the following Web sites to get copies:
    (1) U.S. DOT Dockets Management System (DMS) using the URL http://dms.dot.gov/search, and type the last four digits (4202) to access the 
docket;
    (2) Today's Federal Register at http://www.gpoaccess.gov/; and
    (3) FMCSA at http://www.fmcsa.dot.gov.

Background

    On July 30, 1998, the Federal Highway Administration (FHWA, or the 
Agency) published an NPRM (63 FR 40691) to prohibit CMV operators from 
driving onto a railroad grade crossing without having sufficient space 
to drive completely through without stopping (and thus leaving a 
portion of the CMV across the tracks), as required by Section 112 of 
the Hazardous Materials Transportation Authorization Act of 1994 (Pub. 
L. 103-311, 108 Stat. 1673, at 1676, August 26, 1994). On November 9, 
1999, the then Department of Transportation's Office of Motor Carrier 
Safety (DOT OMCS) (and previously FHWA's Office of Motor Carriers) held 
a public meeting to discuss highway-rail grade crossing accidents. A 
transcript of the meeting was placed in the docket.
    As stated in the report by the Senate Committee on Commerce, 
Science, and Transportation (December 9, 1993), the goal of the 
provision in Senate Bill 1640, which later became Section 112, was to: 
``* * * improve safety at highway-railroad crossings in response to 
fatalities that have occurred from accidents involving commercial motor 
vehicle operators who failed to use proper caution while crossing* * * 
[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 (1994), reprinted in 1994 U.S.C.C.A.N. 1763, 1773].
    The NPRM noted that many factors could prevent a CMV operator from 
driving completely through a grade crossing without stopping, such as a 
stop sign or other traffic control device beyond the crossing in close 
proximity to the tracks, or the presence of other vehicles or obstacles 
in the roadway beyond the crossing. The agency also noted that 
crossings with 12.2 meters (40 feet), or less, between the tracks and a 
stop sign could not accommodate a tractor-trailer combination 18.3 
meters (60 feet) long. The States were therefore asked to submit data 
on the number and locations of highway-railroad grade crossings that 
could not accommodate the longest CMVs legally permitted to operate in 
each State if the proposed rule were adopted. The NPRM also asked for 
information on alternative routes that truckers could use if a 
particular crossing were unavailable because of their compliance with 
the proposed rule. Motor carriers were asked to assess the impact of 
the proposed rule on their operations and advise FHWA of their 
conclusions. FHWA asked the States to respond within two months, and 
motor carriers and others within four months.

Discussion of Comments

    Forty-five comments were received in response to the NPRM. The 
commenters included thirty-five (35) State agencies, the Association of 
American Railroads (AAR), the American Trucking Associations (ATA), the 
National School Transportation Association (NSTA), the Greater 
Cleveland Transit Authority (Cleveland Transit), New Jersey Transit, 
Florida East Coast Railway Co. (Florida Railway), Guttman Oil Co., KLD 
Associates, Thompson Trucking, and Walter A. McDonald, a retired State 
transportation official.
    Most State agencies said it would be difficult to comply with the 
proposed data request; several requested extensions of time of a year 
or more to complete their inventory of grade crossings. Other State 
agencies said that compliance with the NPRM would be a major effort 
requiring Federal funding. With three exceptions, the respondents 
believed the proposed rule was impractical and virtually impossible to 
implement. NSTA, AAR, and Florida Railway supported the proposed rule 
and believed it would improve safety. AAR said it was a logical 
extension of many existing State laws that prohibit all vehicles from 
stopping on railroad tracks.
    As discussed below, four areas of contention have been identified.

Objection to FHWA's Information Request

    Rather than expending the financial and human resources to 
inventory all crossings, three State agencies suggested addressing 
specific crossings on a location-by-location basis and considering 
factors such as crash history, rail traffic and travel speed, roadway 
traffic volume, road and railway alignment grade, and available storage 
distance. Kansas questioned the expenditure of its resources to collect 
the information request in the NPRM. North Carolina said it did not 
have the money, time, or personnel to comply with the request. Wyoming 
and New Jersey believed the request was too general and did not provide 
sufficient detail to answer the questions contained in the NPRM. 
Wyoming suggested that specific parameters be identified to ensure 
uniformity of the measurements and data collected in each State.

Lack of Feasibility of the Proposed Rule

    Several States said the proposed rule would require major road and 
railroad improvements to facilitate compliance, because alternate 
routes are not always available. They also said implementing the rule 
would be a barrier to inter- and intrastate commerce because of its 
significant financial impact. Two State agencies and a motor carrier 
noted that the designs of some grade crossings do not permit clearance 
of the railroad tracks and that such crossings are often the only route 
to a specific location. One of the few motor carriers that responded to 
the NPRM suggested that all crossings have at least 90 to 100 feet of 
clear space between the tracks and any traffic control device, and that 
advanced signals be installed to alert train engineers of track 
blockage. Iowa reported that it has 2,113 grade crossings within 75 
feet of a street of highway intersection, but it noted that most of the 
crossings are on railroad branch lines with infrequent service, low 
operating speeds, and good visibility; vehicle traffic at these 
crossings is also low. Iowa argued that Federal regulations are 
inappropriate in light of the accident history of many crossings and 
the fact that these histories change over time because of local 
developments.

[[Page 25130]]

    Wisconsin believed the proposed rule was workable for intersections 
and grade crossings controlled by traffic signals, but not for 
crossings near intersections that are controlled by stop or yield 
signs. Wisconsin suggested postponing the effectiveness of the rule 
until the Manual on Uniform Traffic Control Devices (MUTCD) was changed 
to address the issue of traffic signals at such intersections/
crossings. Nevada said all but one its grade crossings are in rural 
areas, and all but two are poor candidates for traffic signals. Nevada 
said signalization for the crossings was probably five to ten years in 
the future and that relocating the railways or closing the crossings 
was not feasible. Nevada said relocation of roadways is limited by 
geography and economic development and that truck advisory signs would 
be more appropriate for the affected crossings, thus limiting overall 
improvements to installation of signage.
    New Jersey said replacing stop signs with traffic signals would 
further impede traffic flow already interrupted by many signals, but 
agreed that it is feasible and desirable to interconnect traffic 
signals and adjust timing where signals already exist.
    Pennsylvania said it might be possible to locate a stop sign or 
traffic control device in some locations so that vehicles encounter it 
before entering the crossing. However, Pennsylvania noted that apart 
from these potential solutions, safety improvements become very 
expensive or politically difficult to enact.

Economic Impact of the Proposed Rule

    Oklahoma and California argued that Federal funding was necessary 
to implement the rule. Connecticut believed manpower requirements for 
design and construction of crossing improvements, including the 
financial impacts, would likely exceed resources available to State and 
local agencies and private owners. The State estimated the cost of 
installing signals that would be activated by the approach of a train 
at approximately $280,000 (per crossing, presumably). Connecticut 
suggested instituting a Federal program with a funding source dedicated 
exclusively to the problem of limited storage distance at grade 
crossings.

Burden and Costs of Compliance Far Exceed the Anticipated Benefits

    Kansas said it did not have adequate information to identify 
accidents related to insufficient storage space. The State said that 
its accident statistics for the previous eight years revealed 109 CMV-
train accidents, or 13.6 per year, and that even if all of these 
accidents were caused by the problem of inadequate storage space, the 
proposed rule would be addressing a relatively minor problem. Indiana 
believed storage space was not a significant factor in its accident 
record. The State said that, in the past five years, only 6.4 percent 
of train-vehicle collisions (78 out of 1,213) involved truck-trailer 
combination vehicles, and, of those, only 38 accidents (3.1 percent of 
the total) were at a highway-railroad grade crossing near an 
intersection. Indiana said even if all 38 accidents were due to storage 
problems, which it called unlikely, they would still represent only a 
small part of the State's overall accident exposure.
    Pennsylvania said there were 692,138 accidents in the State from 
1993 through 1997, but only 31 involved CMVs and trains and none of 
those accidents involved vehicles approaching a highway-railroad 
intersection where traffic was stopped at a traffic control device. 
Pennsylvania did not believe that the proposed rule would have a major 
impact on safety or that it would be appropriate to initiate a labor-
intensive, field inventory effort to collect the information requested.
    Wisconsin said it averaged one fatal train-truck accident every 
five years, or about 3 percent of total train-vehicle fatal accidents.

The Public Meeting

    The DOT OMCS held a public meeting on November 9, 1999, which 
generated extensive testimony and discussion regarding the issue of 
highway-rail grade crossing safety. A transcript of the meeting is in 
the docket for this rulemaking. The discussion focused on initiatives 
that could be taken to prevent train-vehicle collisions at grade 
crossings, but not on the feasibility or advisability of the proposed 
rule. The potential options discussed involved changes to the grade 
crossing environment, such as changes to traffic control devices near 
grade crossings; policy changes, such as developing programs that would 
allow CMVs to select routes to avoid grade crossings near traffic 
control devices; and educating CMV operators on actions to take if a 
CMV becomes incapacitated on a crossing.

FMCSA Decision

    After reviewing the comments to the NPRM and the transcript of the 
public meeting, FMCSA has concluded that this rulemaking has created a 
great deal of misunderstanding and should be terminated.
    FHWA asked the States for information on the number and location of 
highway-railroad grade crossings with inadequate storage space--and on 
alternative crossings--as the first step in estimating the costs and 
benefits of the rule required by Section 112. In view of the expected 
complexity of that analysis, the Agency needed as much information as 
possible. Many State agencies, however, seem to have assumed that they 
were required to provide the information; that the final rule would 
then require them to reconstruct, rewire, reroute or otherwise correct 
every inadequate crossing; and that the Agency was indifferent to the 
costs of such an undertaking. In fact, the time, difficulty and cost 
involved in collecting reliable data on highway-railroad grade 
crossings became a primary focus of the comments.
    Section 112 requires a rule applicable to motor carriers, not to 
States. If the regulatory requirement prevented some motor carriers 
from using a particular crossing because the storage space is too short 
for their normal vehicles, several options are available (such as 
switching to shorter trucks or using alternate crossings) before any 
reconstruction efforts suggested by the State commenters need to be 
considered. And even then, significant civil engineering projects are 
likely to have a low priority. Consultations among government entities, 
truckers, and the shippers they serve might produce quick and simple 
solutions.
    Therefore, FMCSA terminates this rulemaking and will open a new one 
less burdened by previous misunderstandings. An NPRM to address the 
requirements of Section 112 will be published when additional analysis 
of grade crossing problems, which is now under way, has been completed.
    In view of the foregoing, this rulemaking proceeding is terminated.

    Issued on: April 24, 2006.
 Warren E. Hoemann,
Acting Administrator.
 [FR Doc. E6-6424 Filed 4-27-06; 8:45 am]
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