[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5120-5129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1841]



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


SUMMARY: FMCSA and PHMSA propose to amend the Federal Motor Carrier 
Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs), 
respectively, to prohibit a motor vehicle driver 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. The intent of this rulemaking is to reduce 
highway-rail grade crossing crashes.

DATES: Send your comments on or before March 29, 2011.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Numbers PHMSA-2010-0319 (HM-255) and FMCSA-2006-25660 
by any of the following methods:
     Web Site: http://www.regulations.gov. Follow the 
instructions for submitting comments on the Federal electronic docket 
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: 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.
    Instructions: All submissions must include the Agency names and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For

[[Page 5121]]

detailed instructions on submitting comments and additional information 
on the rulemaking process, see the Public Participation heading below. 
Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. 
Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://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.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
January 17, 2008 (65 FR 19476) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public participation: The http://www.regulations.gov Web site is 
generally available 24 hours each day, 365 days each year. You can get 
electronic submission and retrieval help and guidelines under the 
``help'' section of the http://www.regulations.gov Web site and also at 
the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard or print the acknowledgement page that 
appears after submitting comments online.
    Comments received after the comment closing date will be included 
in the docket, and we will consider late comments to the extent 
practicable. FMCSA and PHMSA, however, may issue a final rule at any 
time after the close of the comment period.

Carrier Operations; or [email protected]. Telephone (202) 366-4325. 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, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590 0001.



    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] requires FMCSA and PHMSA to amend the FMCSRs and the 
HMRs, respectively, to prohibit drivers of motor vehicles from driving 
onto a highway-rail grade crossing unless there is sufficient space to 
drive completely through the grade crossing without stopping. 
(Throughout the remainder of this document, FMCSA and PHMSA use the 
term ``grade crossing'' to refer to public, open, at-grade highway-rail 
grade crossings, unless otherwise noted.) The report by the Senate 
Committee on Commerce, Science, and Transportation (December 9, 1993) 
states that the intent of 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.'' The report also states that 
``[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'' (Senate Report No. 
103-217, at 11 (1994), reprinted in 1994 U.S.C.C.A.N. 1763, 1773). The 
consequences of a motor vehicle failing to clear the tracks at a grade 
crossing are potentially serious, particularly if a vehicle or train is 
transporting hazardous materials or passengers. Over time, increased 
motor vehicle traffic and congestion at some grade crossings, as well 
as increased train movements, may amplify this risk.
    The Manual on Uniform Traffic Control Devices (MUTCD 2009 edition), 
published by the Federal Highway Administration (FHWA) and incorporated 
by reference in 23 CFR part 655, subpart F, describes in chapter 8A the 
length of roadway necessary for a particular vehicle to clear the 
tracks safely as the ``clear storage distance.'' \1\ Chapter 8 guidance 
material also refers to ``storage space.'' ``Storage space'' means the 
space available for stationary vehicles between a traffic control 
device (traffic signal, stop sign, or yield sign) and the railroad 
crossing behind them.

    \1\ See http://mutcd.fhwa.dot.gov.

I. Legal Basis for the Rulemaking

    This rulemaking is based on the authority of the Motor Carrier Act 
of 1935 (MCA or 1935 Act) and the HMTAA. The 1935 Act provides that 
``The Secretary of Transportation may prescribe requirements for (1) 
qualifications and maximum hours of service of employees of, and safety 
of operation and equipment of, a motor carrier; and, (2) qualifications 
and maximum hours of service of employees of, and standards of 
equipment of, a motor private carrier, when needed to promote safety of 
operation'' [49 U.S.C. 31502(b)]. Pursuant to 49 U.S.C. 31501(2), the 
definitions used in 49 U.S.C. 13102 apply to the 1935 Act. ``Motor 
carrier,'' therefore, means ``a person providing motor vehicle 
transportation for compensation'' [49 U.S.C. 13102(14)]; and ``motor 
private carrier'' means ``a person, other than a motor carrier, 
transporting property by motor vehicle when--(A) the transportation is 
as provided in section 13501 of this title [i.e., in interstate 
commerce]; (B) the person is the owner, lessee, or bailee of the 
property being transported; and (C) the property is being transported 
for sale, lease, rent, or bailment or to further a commercial 
enterprise'' [49 U.S.C. 13102(15)].
    The grade crossing regulations set forth in 49 CFR 392.12 of this 
NPRM pertain directly to the ``* * * safety of operation'' of the motor 
carriers over which FMCSA has jurisdiction. The adoption and 
enforcement of such rules was specifically authorized by the MCA. This 
proposed rule is based, in part, on that authority.
    Before prescribing any regulations, FMCSA must also consider their 
``costs and benefits'' [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those 
factors are also discussed in this proposed rule.
    This NPRM is also based on the authority of the Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.), under which, the Secretary of Transportation is charged with 
protecting the nation against the risks to life, property, and the 
environment that are inherent in the commercial transportation of 
hazardous materials. Section 5103(b)(1)(B) provides that PHMSA's 
Hazardous Materials Regulations (HMR; 49 CFR Parts 171 through 180) 
``shall govern safety aspects, including security, of the 
transportation of hazardous material the Secretary considers 
appropriate.'' As such, PHMSA has the authority to adopt requirements 
pertaining to hazardous materials transportation that are applicable to 
both intrastate and interstate commerce. The amendments to 49 CFR 
177.804 proposed here are based directly on PHMSA's authority.
    The primary impetus for this rulemaking is section 112 of the

[[Page 5122]]

HMTAA, which directed the Secretary of Transportation to adopt a rule 
to prohibit the driver of a commercial motor vehicle (CMV) from driving 
onto a grade crossing ``without having sufficient space to drive 
completely through the crossing without stopping.'' Section 112 reads 
as follows:

    Sec. 112 Grade Crossing Safety.
    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 315 of such title (relating to motor carrier 
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. [108 Stat. 1676]

    Section 112(1), of HMTAA mandates a change to prohibit the driver 
of a commercial motor vehicle that is transporting hazardous materials 
from driving the motor vehicle onto a highway-rail grade crossing 
without having sufficient space to drive completely through the 
crossing without stopping. Because the safety benefits associated with 
this section are equally applicable to drivers operating in intrastate 
commerce as they are to interstate commerce, this Section falls under 
chapter 51 of title 49 U.S.C. and corresponding changes would be 
incorporated into Sec.  177.804 of the HMR. However, to promote 
consistency between PHMSA and FMCSA, the definition of ``hazardous 
materials,'' provided by the Federal Motor Carrier Safety Regulations 
(FMCSRs; 49 CFR Parts 350-399), is used to define the scope of this 
    FMCSA defines ``hazardous materials'' in Sec.  383.5 of the 49 CFR 
as follows:
    Hazardous materials means any material that has been designated as 
hazardous under 49 U.S.C. 5103 and is required to be placarded under 
subpart F of 49 CFR part 172 or any quantity of a material listed as a 
select agent or toxin in 42 CFR part 73.
    Based on this definition and PHMSA's authority, the scope of the 
proposed changes to 49 CFR 177.804 encompass all drivers who transport 
a quantity of hazardous materials requiring placarding under Part 172 
of the 49 CFR or any quantity of a material listed as a select agent or 
toxin in 42 CFR Part 73. This includes drivers of motor vehicles of any 
size that are used to transport the materials covered by the FMCSA 
definition. Additionally, it includes drivers engaged in intrastate or 
interstate commerce.
    Although section 112(2) refers to the driver of a ``commercial 
motor vehicle'' under chapter 315 of title 49, the relevant portion of 
that chapter--49 U.S.C. 31502(a)-(b)--does not use the term 
``commercial motor vehicle,'' referring instead to ``motor carriers'' 
and ``motor private carriers'' as defined in 49 U.S.C. 13102 (the 
definitions of ``motor carrier'' and ``motor private carrier'' are 
discussed above). A ``motor vehicle'' is defined in section 13102(16) 
as ``a vehicle, machine, tractor, trailer, or semitrailer propelled or 
drawn by mechanical power and used on a highway in transportation, or a 
combination determined by the Secretary, but does not include a 
vehicle, locomotive, or car operated only on a rail, or a trolley bus 
operated by electric power from a fixed overhead wire, and providing 
local passenger transportation similar to street-railway service.'' 
These are the definitions that determine the scope of 49 CFR 392.12, 
the FMCSA portion of this NPRM.
    It should be noted that, unlike ``CMV,'' the defined term that 
describes the motor vehicles over which FMCSA has jurisdiction in many 
other provisions of the FMCSRs, a ``motor vehicle,'' as defined in 
section 13102(16), does not have a minimum weight threshold. This 
proposed rule, therefore, applies to the operation in interstate 
commerce of any motor vehicle used by a for-hire ``motor carrier'' or a 
``motor private carrier'' in furtherance of a commercial enterprise, 
even if its gross vehicle weight (GVW) or gross vehicle weight rating 
(GVWR) is less than the 10,001-pound threshold for a CMV. In addition, 
Sec.  392.12 would not apply to a private carrier of passengers because 
the definition of a ``motor private carrier'' in section 13102(15) 
covers only the transportation of ``property,'' not passengers.

II. History

    On July 30, 1998, FHWA published an NPRM to implement section 
112(2) (63 FR 40691). The NPRM proposed to amend the FMCSRs by adding a 
new section, 49 CFR 392.12, to read as follows: ``A driver of a 
commercial motor vehicle shall not drive onto a highway-rail grade 
crossing without having sufficient space to drive completely through 
the crossing without stopping.''
    The Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 
113 Stat. 1748, December 9, 1999) created FMCSA as a new operating 
administration of DOT, effective January 1, 2000. FMCSA assumed the 
motor carrier safety functions previously exercised by FHWA's Office of 
Motor Carriers.

Withdrawal of 1998 NPRM

    On April 28, 2006, FMCSA withdrew the 1998 NPRM [71 FR 25128]. 
FMCSA stated:

    After reviewing the comments to the NPRM and the transcript of 
the [November 9, 1999] 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--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 
    Section 112 requires a rule applicable to drivers, not to 
States. If the regulatory requirement prevented some motor carriers 
from using a particular crossing because the storage distance 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.

Survey of State Models

    FMCSA reviewed State statutes on grade crossings. As expected, all 
States have laws regarding operation of vehicles near or over grade 
crossings. Most of these provisions are variations on the requirements 
in 49 CFR 392.10 and 392.11 (e.g., stopping between 15 and 50 feet from 
the tracks, looking and listening for a train, crossing without 
shifting gears, etc.). On the other hand, only 24 States have storage-
space laws similar or identical to the requirements of section 112 of 
the HMTAA. The recently enacted provisions usually match section 112 
very closely. The older laws, adopted in the 1970s and 1980s, prohibit 
entering an intersection or grade crossing--even on a green

[[Page 5123]]

light--unless traffic conditions permit the vehicle to drive all the 
way through without blocking traffic on the cross street or rail line. 
Although it is not clear how the States interpret such provisions, the 
reference to blocking traffic on the cross street or rail line might 
mean that--unlike section 112--these laws would not prohibit a driver 
from starting across an empty grade crossing with no train in sight if 
a brief stop at a traffic sign or signal on the other side would leave 
the rear of the vehicle on the tracks.

Grade Crossing Safety Outreach Activities

    Since publication of the 1998 NPRM, various regulatory actions, 
outreach initiatives, and research activities have helped to improve 
grade crossing safety. FMCSA, the Federal Railroad Administration 
(FRA), and the Federal Transit Administration (FTA) intensified their 
outreach and educational activities to prevent grade crossing 
crashes.\2\ In 1999, DOT convened a public meeting to promote 
information sharing on grade crossing crashes involving CMVs. In 
addition, FMCSA worked with FRA, FTA, and FHWA to update the 
Department's ``1994 Grade Crossing Action Plan.'' In June 2004, the 
Secretary issued the ``Action Plan for Highway-Rail Grade Crossing 
Safety and Trespass Prevention,'' which focused Departmental and 
private sector resources to enhance grade crossing safety by 
distributing educational literature to heighten awareness about grade 
crossings and the ``hump'' (or vertical alignment profile) challenges 
they present, particularly to vehicles with long wheelbases or low-
hanging equipment. This educational focus also extended to the 
development of improved highway route guidance to identify and help 
drivers avoid problematic grade crossings. In 2006, FMCSA, in 
collaboration with FRA, issued laminated visor cards for drivers, 
outlining safety tips for crossing railroad tracks. DOT and its 
agencies will continue to develop further outreach and education 

    \2\ The FRA uses the terms ``accident'' and ``incident'' in its 
definitions and databases used to collect data on grade crossings. 
The variations do not rise to a level of significance; however, 
FMCSA uses the term ``crash'' in its publications, except when the 
terms ``accident'' or ``incident'' appear in names or quotes.

2006 Public Meeting and Comments

    On September 20, 2006, following notice in the Federal Register, 
FMCSA, in conjunction with FHWA, FRA, and PHMSA, held a public meeting 
in Washington, DC, to provide all interested parties an opportunity to 
express their views on this rulemaking. Only two members of the public 
attended, including a representative from the Association of American 
Railroads (AAR). There was a detailed discussion of the subject matter 
with that representative. A copy of the transcript from that meeting is 
available in docket FMCSA-2006-25660.
    The Owner Operator Independent Drivers Association, Inc. (OOIDA) 
submitted the only comments during the public comment period for the 
meeting. OOIDA recommended three things. First, OOIDA suggested that 
FMCSA should provide pavement markings and signage at or near grade 
crossings to indicate the storage space available to CMV drivers. FMCSA 
and PHMSA do not have the statutory authority to mark, sign, or require 
others to mark roads and provide signs at or near grade crossings. 
FHWA, however, has funding available annually under 23 U.S.C. 104(b)(5) 
(``highway safety improvement program'') as a set aside under 23 U.S.C. 
148(a)(3) (``highway safety improvement project'') and 23 CFR part 924, 
Highway Safety Improvement Program, for a variety of highway safety 
improvement projects (HSIPs). Eligible HSIPs include: (1) Construction 
of projects for the elimination of hazards at a public railroad 
crossing that is eligible for funding under 23 U.S.C. 130; (2) 
improvement of highway signage and pavement markings; and (3) 
installation of a traffic control or other warning device at a location 
with high crash potential. FMCSA and PHMSA will bring OOIDA's 
suggestion to the attention of FHWA. We note 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.
    Second, OOIDA suggested that FMCSA undertake additional comparative 
analyses to determine the number of grade crossings with inadequate 
storage space in industrial areas. OOIDA suggested that some such grade 
crossings are rarely used by trains and that regulatory prohibitions in 
these cases may be far more expensive than any possible benefits. 
Defining an ``industrial area'' has proven to be difficult and somewhat 
subjective. FMCSA and PHMSA do not agree that such comparative analyses 
are necessary. The regulation proposed today may occasionally--though 
not frequently--cause disproportionate expense, as OOIDA says; but this 
is a statutory mandate.
    Finally, OOIDA suggested FMCSA and PHMSA consider educational 
outreach through State driver licensing agencies to inform automobile 
drivers of the risks of passing CMVs to occupy space left at the head 
of the queue by prudent truck drivers at grade crossings. OOIDA 
reported that its members increasingly witness this practice, which 
forces CMV drivers to wait through several cycles of the traffic 
signals before being able to cross. According to OOIDA members, some 
States and localities have programmed traffic lights with cycles so 
short that CMVs are often prevented from crossing, especially when 
impatient automobile drivers rush to occupy any open space ahead of a 
CMV. This sometimes results in automobile drivers becoming trapped on 
the tracks when the crossing alarm sounds. OOIDA suggests creating 
informational signage to inform automobile drivers of the risks 
involved in such me-first tactics. FMCSA will encourage Motor Carrier 
Safety Assistance Program lead agencies to distribute grade crossing 
safety materials to their driver licensing colleagues in State 
government and to suggest the addition of such material to State driver 
training manuals that do not already cover the subject.

III. The Proposed Rule

Section 392.12

    Today's NPRM would adopt the statutory language of section 112 as 
49 CFR 392.12. While the proposed regulatory text is essentially the 
same as that published in the 1998 NPRM, FMCSA believes the context in 
which the proposal is presented will make the potential impact of the 
rulemaking clearer.
    Though the proposed rule would not explicitly prohibit motor 
vehicles from using certain grade crossings, it might have that effect 
where the clear storage distance between the train tracks and the next 
traffic control device is less than the length of the vehicle. To 
proceed through such a grade crossing, a motor vehicle driver would 
either have to ignore the traffic control device or comply with the 
traffic control device but violate the proposed rule by driving onto 
the grade crossing without having sufficient space to drive completely 
through the crossing without stopping.

Section 177.804

    To ensure that the statutory language of section 112 applies to 
both interstate and intrastate motor carriers, PHMSA would revise 49 
CFR 177.804. PHMSA

[[Page 5124]]

proposes to add a new paragraph (b) to require drivers of commercial 
motor vehicles transporting a quantity of hazardous materials requiring 
placarding under Part 172 of the 49 CFR or any quantity of a material 
listed as a select agent or toxin in 42 CFR Part 73 to comply with the 
FMCSA safe clearance requirements for highway-rail crossings. 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.

Additional Assistance

    FMCSA and PHMSA acknowledge OOIDA's concerns that this rulemaking 
could result in CMV drivers encountering situations in which compliance 
with the proposed rule might be difficult to achieve. Therefore, the 
two Agencies will work with State enforcement agencies, the motor 
carrier and railroad industries, and safety advocacy groups to provide 
information to assist carriers in identifying options for traveling 
safely through problematic grade crossings, including developing 
educational and technical assistance and frequently asked questions. 
FMCSA and PHMSA will also consider issuing regulatory guidance in 
response to inquiries to provide additional assistance to the motor 
carrier industry and State enforcement personnel in implementing the 

IV. Scope of the Safety Problem

    Generally, the grade crossings where the physical storage distance 
is less than 100 feet would present the greatest challenge to motor 
vehicle drivers. A typical 3-axle ``day cab'' (a tractor without a 
sleeper berth) with a 2-axle, 53-foot semitrailer is 65 feet long. A 
typical 3-axle truck tractor (with a sleeper berth) pulling a 2-axle, 
53-foot semitrailer would be about 65 to 72 feet long. Typical cars on 
American highways range from 13 to 18 feet \3\ in length. With one 
short car and one long car ahead of it in a queue at a grade crossing 
with 100 feet of storage space, a 65-foot truck might find it 
impossible to clear the railroad track.

    \3\ FMCSA and PHMSA reviewed various auto manufacturers' Web 
sites for the specific length measurements for small sports cars and 
large luxury executive sedans to arrive at the 13 to 18 feet range.

Number of Grade Crossings

    The number of such grade crossings was determined by analyzing 
several FRA and geographic mapping databases. Table I summarizes the 
findings on grade crossings in the continental United States where the 
clear storage space is limited. FMCSA and PHMSA estimate that the total 
number of public, at-grade, open highway-rail grade crossings of all 
types is 145,702. Of these, 84,835 grade crossings have an estimated 
available clear storage distance of more than 1,500 feet.
    There are about 60,867 grade crossings where the estimated 
available clear storage distance is 1,500 feet or less. FMCSA and PHMSA 
estimate that approximately 19,824 of these grade crossings have a 
clear storage distance of less than 100 feet. FMCSA and PHMSA estimate 
there are 41,043 grade crossings (60,867 minus 19,824 equals 41,043) 
where the estimated available storage distance is greater than 100 feet 
but 1,500 feet or less. In addition, there are 1,384 other grade 
crossings estimated to have a relatively higher risk of storage-
distance issues due to a combination of factors such as the volume of 
motor vehicle and CMV traffic, the number of train movements, and the 
number of lanes of roadway. Therefore, the total number of grade 
crossings of primary interest for this proposed rule is 21,208 (19,824 
plus 1,384 equals 21,208), representing approximately 14.5 percent of 
grade crossings in the United States.

            Table I--Grade Crossings in the Continental U.S.
                                                        Number of grade
          Distance to nearest intersection                 crossings
All Grade Crossings.................................             145,702
Greater Than 1,500 feet.............................              84,835
Less Than or Equal To 1,500 feet....................              60,867
Less Than 100 feet..................................              19,824
100-500 feet........................................              26,959
501-1,000 feet......................................               8,843
1,001-1,500 feet....................................               5,241

Number of Grade Crossing Crashes

    FMCSA and PHMSA used FRA's Railroad Accident/Incident Reporting 
System, Highway-Rail Grade Crossing Accident/Incident File to analyze 
the extent to which storage distance has historically been recorded as 
a factor in grade crossing crashes. FMCSA and PHMSA analyzed crashes 
involving CMVs during the period 1998 through 2005. Table II summarizes 
the estimated number of grade crossing crashes.

 Table II--Crashes at Grade Crossings With Limited Storage Space 1998 to
                                                       Number of crashes
                     Definition                         (1998 to 2005)
All Crashes at All Highway-Rail Grade Crossings                   26,027
 Involving All Types of Vehicles....................
    All Crashes at Any One of the 21,208 FMCSA-                    4,168
     Identified Grade Crossings of Interest to the
     Proposal's Regulatory Impact Assessment--......
        --With a Train Striking a Truck or Bus--....                 890
        --Stopped or Trapped on the Crossing--......                 289
        --Definitely or Probably Storage Related....                  32

[[Page 5125]]

        --Possibly Storage Related *................                 122
* In order to ensure adequate consideration of the potential that the
  crash was storage related, this number was developed using the same
  proportion as those with sufficient narrative information, i.e.,
  assuming 42.1 percent of crashes with indeterminate narratives are
  classified as storage-distance related. (See Regulatory Impact
  Assessment in dockets PHMSA-2010-0319 (HM-255) or FMCSA-2006-25660 for
  further information.)

V. Costs and Benefits of Rule Implementation

    Data are not available to estimate with any degree of certainty the 
costs and benefits of implementing this rule. However, the Agencies are 
required by statute to implement a rule prohibiting drivers from going 
across grade crossings unless there is sufficient space to clear the 
crossings completely without stopping. 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 of the differences in crash 
rates, the Agencies believe the differential is large enough to suggest 
that such rules have safety benefits. The States' voluntary adoption of 
storage-space rules also suggests that the costs of implementing the 
requirements have not proven to be an issue with the States or with the 
motor carrier industry. Based on the safety impacts seen in the States 
that have adopted requirements similar to those considered in this 
rulemaking, FMCSA and PHMSA believe the rule would provide a cost-
beneficial enhancement to safety.
    As mentioned above in the Legal Basis section of the preamble, CMVs 
have a minimum weight threshold of 10,001 pounds. However, the ``motor 
vehicles'' to which the proposed rule would apply have no such 
threshold; any motor vehicle, no matter how small, used by a ``motor 
carrier'' or ``motor private carrier'' in interstate commerce in 
furtherance of a commercial enterprise would be subject to the proposed 
rule. Yet these lighter vehicles--mainly pickup trucks and work vans--
are unlikely to be affected by this proposal because virtually every 
grade crossing has enough storage space to accommodate one of them; and 
they are simply too short and maneuverable to be trapped on grade 
crossings with storage space for several vehicles. Even if traffic 
suddenly bunched up, leaving one of these vehicles stopped on the 
tracks, it could drive onto the shoulder or otherwise maneuver out of 
harm's way. Because FMCSA has concluded that the proposed rule would 
impose no costs on vehicles too small to qualify as CMVs, they are 
ignored in the following analysis of costs and benefits.
    Also mentioned in the Legal Basis section of this NPRM is that 
PHMSA's authority includes intrastate carriers. PHMSA estimated the 
number of carriers that may be affected by assessing hazmat 
registration data from the 2010-2011 registration year. The data is 
collected on DOT form F 5800.2 in accordance with Sec.  107.608(a) of 
the 49 CFR. Generally, the registration requirements apply to any 
person who offers for transportation or transports a quantity of 
hazardous materials requiring placarding under Part 172 of the 49 CFR. 
Additional data collected on form F 5800.2 verify that the person is 
indeed a carrier, the mode of transportation used, and the US DOT 
Number. Based on PHMSA's analysis of form F 5800.2--18,841 persons have 
registered as motor carriers of hazardous materials. Of those 18,841 
persons 17,599 included a US DOT Number. Therefore, based on PHMSA's 
registration data, the difference between persons registered as motor 
carriers and persons that have obtained a US DOT Number is 1,242 
(18,841 - 17,599 = 1,242). PHMSA considers these persons to be 
intrastate motor carriers. PHMSA compared these numbers with the FMCSA 
Motor Carrier Management Information System (MCMIS). Based on MCMIS 
data, PHMSA verified that the 1,242 carriers identified through 
registration data have not been issued a US DOT Number by FMCSA.
    To ensure that all intrastate carriers are identified, PHMSA 
multiplied the number of intrastate carriers identified through 
registration data by a 20% underreporting factor. As a result, the 
total population of intrastate carriers affected by this rulemaking is 
1,490 intrastate motor carriers (1,242 x 1.20 = 1,490). For the 
purposes of this NPRM the cost and benefit impact is applied to each 
intrastate and interstate motor carrier equally. In the cost and 
benefit discussions that follow the Agencies consider the costs and 
benefits applicable to the total population of intrastate and 
interstate carriers affected by this proposed rule. The Agencies 
consider that, because the proposed rule does not mandate specific 
changes in carrier operations, driver training, or grade crossing 
infrastructure enhancements, its cost impacts should not be 
significant. Because a substantial number of States already have in 
place storage-space rules, motor vehicle drivers operating in or 
through those States should have the experience and knowledge needed to 
ensure compliance. FMCSA and PHMSA do not believe the rule is so 
complex that it would require special training of drivers operating in 
the other States. The Agencies request public comment on this issue.
    For motor vehicles, the storage-distance related annual crash rate 
per 1,000 grade crossings is 0.72.\4\ FMCSA and PHMSA found that the 
difference in this rate between States that have laws/regulations 
similar to the proposed Federal rule and those that do not is 0.285 
crashes per 1,000 grade crossings per year. Thus, FMCSA and PHMSA would 
expect 2.62 fewer crashes per year, if all States adopted the proposed 
Federal rule,\5\ and 0.2 fewer train derailments.\6\

    \4\ 122 crashes/8 years/21,208 grade crossings with limited 
storage space x 1,000 = 0.72.
    \5\ 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.
    \6\ 14 derailments/122 grade crossing incidents x 2.62 incidents 
prevented equals 0.2 fewer train derailments.

    The total annual savings from crashes avoided (in 2009 dollars) is 
estimated to be approximately $975,000. This consists of $381,000 in 
reduced fatalities, $159,000 in reduced injuries, $1,600 in reduced 
hazardous material spills, $31,000 in reduced highway property damage, 
and $402,000 in reduced costs for train derailments. Total 
implementation costs per year are estimated to be $279,000. Thus, the 
expected annual savings from implementation of this proposed rule would 
be about $696,000.
    Table III displays the 10-year average annual and discounted net 
costs and

[[Page 5126]]

benefits of the statute that we are implementing in this proposal.

 Table III--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Proposed Grade
                                           Crossing Storage-Space Rule
                                          [In thousands, 2009 dollars]
                                                                                   10-Year           10-Year
                                            Annual impact     10-Year total   (Discounted at 3  (Discounted at 7
                                                                                  percent)*         percent)*
Benefits................................            $975.0            $9,750            $8,566            $6,352
Costs **................................            $381.0            $3,810            $2,172            $1,818
Net Benefits............................            $696.0            $6,960            $5,419            $4,535
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4,
  Regulatory Analysis, September 2003. Note that the first year costs and benefits are not discounted.
** Excludes any potential costs from rerouting due to uncertainty of costs. See Sensitivity Analysis section

Sensitivity Analysis

    It is important to note that the proposed rule could increase 
vehicle miles traveled (VMT) due to re-routing. Because of major data 
limitations, FMCSA and PHMSA performed a sensitivity analysis to 
explore this possibility but are unable to identify what that 
increase--if any--would be. The Congressionally mandated rule would be 
cost beneficial if the additional VMT does not exceed 0.63 percent of 
the maximum possible increase calculated in the sensitivity 
analysis.\7\ The Agencies request comments from motor carriers on the 
extent to which this rulemaking would cause them to reroute their motor 

    \7\ $696,000 in annual savings / 110,000,000 for maximum 
additional VMT equals 0.63 percent.

    This proposed storage-distance rule will discourage drivers of 
motor vehicles, particularly tractor-trailer combinations, from using 
grade crossings at which the storage distance is less than the overall 
length of the vehicle. FMCSA and PHMSA believe most drivers will make 
similar trips dozens or hundreds of times a year and experience the 
need to re-route only the first time. This assumes that the drivers and 
companies learn from their mistakes and avoid re-routing. Driver and 
dispatcher awareness training and improved in-cab geographic 
information system displays may allow companies and motor vehicle 
drivers to plan routes more efficiently before or shortly after leaving 
the point of origin, enabling them to avoid problem grade crossings 
entirely, instead of re-routing appreciably at the last minute.
    If significant numbers of companies or drivers do not plan their 
trips efficiently, and drivers unexpectedly encounter grade crossings 
with storage distances of less than their overall lengths (FMCSA and 
PHMSA assumed that a distance of approximately 100 feet could be 
problematical \8\), there would be additional costs to motor vehicle 
operators and the public due to the rerouting required. These route 
changes would likely result in additional VMT, with consequent 
increases in operating costs and adverse safety impacts.

    \8\ This distance is larger than most motor coach and tractor-
trailer lengths, but less than that of some multiple-trailer and 
over-dimensional vehicles.

    The sensitivity analysis for this proposed rule first determined an 
estimated range of extra VMT that might result if all large motor 
vehicles were re-routed away from all grade crossings with insufficient 
storage space. This assumes that the drivers and companies never change 
their behavior and always go to the grade crossing before re-routing, 
for all trips taken along that route. FMCSA and PHMSA classify this 
outcome as the high-end limit of VMT increases. The actual number of 
re-routed trips would be only a small fraction of the possible number 
because companies and drivers learn from their mistakes and avoid re-
routing. The low-end limit on VMT increases would occur if only minimal 
routing changes are made. FMCSA and PHMSA also provide an estimate that 
is intermediate between these two extremes. As indicated above, the 
proposed rule would be cost beneficial if additional VMT does not 
exceed 0.63 percent.
    The second step in the sensitivity analysis is to calculate the 
additional costs resulting from each of the proposed cases. These 
include increases in large truck operating costs, and societal costs 
associated with crashes that could be expected to occur as mileage 
    Based on the current analysis, there are an estimated 19,824 grade 
crossings in the U.S. where the physical storage distance is estimated 
to be less than 100 feet. For each of these grade crossings, the 
average annual daily traffic (AADT) volume of all motor vehicles 
passing through the grade crossing and the percent of vehicle traffic 
through the crossing estimated to consist of ``trucks'' were obtained 
from the FRA's Grade Crossing Inventory System (GCIS). The AADT figure 
for all vehicle types was transformed into an annual average equivalent 
figure and multiplied by the GCIS ``percent trucks'' data field to 
produce an estimate of the total number of all CMV movements (of all 
types of CMVs) through each grade crossing during the course of 1 year. 
Because only a portion of these truck movements involve tractor-trailer 
combinations of sufficient length, nationwide VMT distribution data by 
vehicle size and type was used to refine the estimate (derived both 
from the 2002 Vehicle Inventory and Use Survey (VIUS),\9\ and the 2005 
Highway Statistics \10\).

    \9\ U.S. Department of Commerce, Economics and Statistics 
Administration, ``2002 Economic Census: Vehicle Inventory and Use 
Survey,'' December 2004.
    \10\ U.S. Department of Transportation, Federal Highway 
Administration, Office of Highway Policy Information, ``Highway 
Statistics,'' 2005.

    The estimated total number of all truck movements at each grade 
crossing is calculated from the total vehicle AADT data and the GCIS 
``percent truck'' figure. This figure is then reduced further by 17 
percent, to reflect the reduction in the relative share (from VIUS and 
the 2005 Highway Statistics) of combination vehicles on non-access-
controlled roadways (where grade crossings would be found).
    The additional miles that each motor vehicle might actually travel 
is likely to vary widely at each grade crossing of interest based on 
local conditions and the specific origin and destination of each trip. 
An estimate of potential average additional miles traveled per motor 
vehicle was developed for each grade crossing based on individual 
inspection of approximately 10 randomly selected grade crossings each

[[Page 5127]]

in urban, suburban, and rural areas throughout the U.S. The actual 
miles traveled estimates for the 10 grade crossings in each type of 
area were then averaged and applied to all grade crossings (classifying 
their locations as rural, suburban, or urban) based on an analysis 
using geographic information systems (GIS) software. An estimate of the 
extra VMT that might be generated by each motor vehicle trying to avoid 
suspect grade crossings was determined to be about on average 0.75 
miles. FMCSA and PHMSA believe numerous grade crossings close together 
in metropolitan areas may result in such a small average extra VMT 
    FMCSA and PHMSA included for analysis only the subset of grade 
crossings with storage distance estimated to be 100 feet or less that 
are located in the 27 jurisdictions (26 States and the District of 
Columbia) that do not currently have storage-space laws similar or 
identical to the requirements of this NPRM. The Agencies only include 
grade crossings where storage distance is estimated to be 100 feet or 
less since, for purposes of re-routing, these are the only crossings a 
driver could easily identify. There are 8,749 such grade crossings in 
these 27 jurisdictions.
    The final estimate of the number of annual movements of large 
trucks through each of these 8,749 affected grade crossings was then 
multiplied by the estimates of additional miles traveled per trip to 
derive a final maximum estimate of 110,902,390 additional VMT annually 
(affecting about 146,307,200 motor vehicle trips annually) in the 27 
jurisdictions where no equivalent State law currently exists.\11\

    \11\ 8,749 affected grade crossings times ~12,676 per trip 
additional miles estimated equals 110,902,390 additional VMT 

    The costs of these additional miles traveled by large trucks 
include added motor carrier operating costs (driver salary, fuel, 
depreciation, etc.), and safety-related costs associated with increased 
risks of crashes. Estimates of the per-mile operating costs for large 
trucks were derived from a September 2004 study of motor carrier 
industry financial and operating performance profiles.\12\ The average 
total operating cost for large motor vehicles carrying all commodity 
types was estimated to be $1.93 per vehicle-mile in 2001. Inflating to 
2009 dollars, this is equivalent to $2.34 per vehicle-mile.

    \12\ Thomas M. Corsi, et al., ``Motor Carrier Industry Profile 
Study: Financial and Operating Performance Profiles by Industry 
Segment, 2001-2002,'' Office of Information Management, Federal 
Motor Carrier Safety Administration, September 2004.

    Estimates of safety-related costs were derived from average 
fatality, injury, and property-damage-only incidence rates developed by 
FMCSA for large truck transportation,\13\ and cost-per-incident 
estimates. These results are summarized in Table IV below.

    \13\ FMCSA, ``Large Truck Crash Facts,'' February 2007.

 Table IV--Estimated Annual Motor Vehicle Operating and Safety Costs Resulting From Added VMT to Bypass Storage-
                                         Space Impacted Grade Crossings
                                               [$2009, thousands]
                                                                               Mid-range           Lower-end
                                                       Highest possible      estimate; 10         estimate; 1
                    Cost category                         estimate of     percent of maximum  percent of maximum
                                                        additional VMT      additional VMT      additional VMT
Extra VMT...........................................             110,900              11,100               1,100
CMV Operations Crash Related:.......................            $261,500            $ 26,100             $ 2,600
Fatalities..........................................            $ 15,600             $ 1,550               $ 200
Injuries............................................             $ 8,200               $ 800             < $ 100
Property Damage.....................................               $ 500             < $ 100             < $ 100
Hazardous Material Spills...........................             < $ 100             < $ 100             < $ 100
    Total Costs.....................................            $286,000             $28,700              $3,100

    These additional operations and safety costs are several hundred 
times greater than the estimated net benefits in Table III, which 
ignores potential re-routing costs. The high-end estimated crash-
related costs, by themselves, are about 42 times greater than the total 
annual net benefits of this proposal. Motor carriers, however, are 
incentivized to minimize VMT in order to save time and money; FMCSA and 
PHMSA believe that operators will be able to find alternate routes that 
add little distance to their trips. We believe the lower-end estimate 
of additional VMT in Table IV is likely to be the most realistic.
    FMCSA and PHMSA seek additional information from the public to 
further assess the costs and benefits of this proposal. FMCSA has found 
no indications of problems caused by rerouting in those States with 
laws similar to this NPRM. FMCSA and PHMSA seek comments from States 
with laws similar to this proposal on how many extra miles, on average, 
their grade crossing prohibitions force trucks and buses to travel to 
avoid crossings with insufficient storage space.

Regulatory Analyses

Executive Order 12866 (Regulatory Planning and 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. FMCSA and PHMSA expect the proposed rule would have minimal 
costs and generate minimal public interest. Previous efforts to 
implement section 112 of the HMTAA have elicited little public 
response. Of the 45 comments submitted to the July 30, 1998, NPRM, 35 
were from State agencies expressing concern that the rulemaking would 
impose certain economic burdens on the States. As explained previously 
in this NPRM, however, those concerns were based on a misunderstanding 
of the applicability of the proposed rule. Comments were received from 
three transportation industry associations (the American Trucking 
Associations (ATA), AAR, the National School Transportation Association 
(NSTA)) and three transit authorities, with only four comments from 
other entities.
    The Agencies note that when FMCSA held a public meeting on the 
implementation of section 112 in September 2006, there were only two 
participants--one from the AAR, none

[[Page 5128]]

from the motor carrier industry or the States. The interest initially 
expressed by States in response to the 1998 NPRM seems to have 
diminished since the NPRM was withdrawn in 2006, presumably because 
FMCSA's discussion of the comments to the docket resolved their 
concerns. The motor carriers and drivers to which this rule would 
apply, as well as the associations that represent their interests, have 
shown little interest in this proceeding; FMCSA and PHMSA therefore 
believe the rulemaking is non-significant in the context of Executive 
Order 12866.
    The Agency has prepared a regulatory analysis of the costs and 
benefits of this proposal. The estimated costs and benefits are small, 
and the rule may be cost beneficial. That is not certain, however, 
given the additional VMT that may be generated but that cannot be 
reliably estimated. A copy of the analysis document is included in 
docket FMCSA-2006-25660.

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 proposed 
regulatory action on small entities and determined that this proposed 
rule would 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 CMV drivers). The 
NPRM, however, does not mandate specific changes in carrier operations 
or driver training. Any rerouting and other logistics costs that might 
be borne by small carriers would occur only to the extent that their 
private benefits were judged to be greater than their costs. Carriers 
are presumed to pursue the most efficient transportation routes in 
order to minimize time, fuel usage, tire wear-and-tear and dead 
heading. Obtaining the most efficient route is a function of many 
factors, one of which is the avoidance of deficient storage-space 
railroad tracks. To the extent that existing carriers have not already 
attained and incorporated efficient route plans, they may sustain a 
revenue reduction, but it is one that is expected to be minimal and 
    Also, there would probably be only minimal additional costs for 
driver training as the training would probably occur as a modification 
of emphasis in existing training curricula and would not likely add 
extra time to the training requirement.
    We estimated that a preponderance of this rule's implementation 
costs, expected to be composed of government administrative, 
enforcement, or training activities, will affect transportation 
personnel in the 27 jurisdictions that do not have an existing law or 
regulation similar to the proposed Federal rule.
    Accordingly, the Administrators of FMCSA and PHMSA hereby certify 
that this proposal would not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    There is only one circumstance under which this rulemaking would 
impose an unfunded Federal mandate, as defined by the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1532, et seq.), resulting in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $140.3 million or more in any 1 year. If 
drivers and motor carriers resolutely fail to learn from previous 
experience (by repeatedly approaching railroad highway grade crossings 
with storage space inadequate to accommodate their vehicles and then 
turning away to find alternative crossings), the additional VMT 
generated by these errors might have a cost exceeding the threshold for 
this statute. FMCSA and PHMSA, however, believe that drivers and 
carriers would make such mistakes only a few times, and thereafter 
select streets and roads with appropriate grade crossings that do not 
require re-routing. PHMSA and FMCSA, therefore, believe that this rule 
would not impose an unfunded Federal mandate.

Executive Order 12988 (Civil Justice Reform)

    This proposed action would meet 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 (Taking of Private Property)

    This proposed rulemaking would not effect a taking of private 
property or otherwise have taking implications under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. FMCSA and 
PHMSA have preliminarily determined that this rulemaking would not have 
a substantial direct effect on States, nor would it limit the policy-
making discretion of the States. Nothing in this document would preempt 
any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

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 that there are no current new information collection 
requirements associated with this proposed rule.

National Environmental Policy Act

    The Agencies analyzed this proposed 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 the Proposed Action would result in a 
decrease in highway and rail vehicle emissions as a result of fewer 
crashes. There are possible, moderately positive impacts to public 
health and safety, specifically at grade crossings, based on a decrease 
in the likelihood of fatalities and injuries as a result of CMV crashes 
due to insufficient storage distance at grade crossings. There are no 
identified overall negative environmental or socioeconomic impacts 
associated with the proposed rule.
    The beneficial impacts of the proposed 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 public health and 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 have also analyzed this rule under the Clean Air 
Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and

[[Page 5129]]

implementing regulations promulgated by the Environmental Protection 
Agency. Approval of this action is exempt from the CAA's general 
conformity requirement since it involves rulemaking and policy 
development and issuance.
    A copy of the joint FMCSA and PHMSA Environmental Assessment (EA) 
is included in docket FMCSA-2006-25660. FMCSA and PHMSA request the 
public to comment on this environmental assessment.

Executive Order 12898 (Environmental Justice)

    FMCSA and PHMSA evaluated the environmental effects of this 
proposed rule in accordance with Executive Order 12898 and determined 
that 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 FMCSA's 
EA, discussed under NEPA, would result in high and adverse 
environmental impacts.

Executive Order 13211 (Energy Effects)

    FMCSA and PHMSA analyzed this proposed action under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution or Use. FMCSA and PHMSA determined preliminarily 
that it would not be a ``significant energy action'' under that 
Executive Order because it would not be economically significant and 
would 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 propose to amend 
title 49, Code of Federal Regulations, chapter I, part 177, and chapter 
III, part 392, as set forth below:


    1. The authority citation for part 177 is revised to read as 

    Authority: 49 U.S.C. 5101-5127; sec. 112 of Pub. L. 103-311, 108 
Stat. 1673, 1676 (1994); 49 CFR 1.53.

    2. Amend Sec.  177.804 by redesignating the existing text as 
paragraph (a), amending newly designated paragraph (a) by adding a 
paragraph heading, and by adding a new paragraph (b) to read as 

Sec.  177.804  Compliance with Federal Motor Carrier Safety 

* * * * *
    (a) General. * * *
    (b) Highway-rail crossings. Drivers of commercial motor vehicles 
transporting a quantity of hazardous materials, as defined in 49 CFR 
383.5, requiring placarding under part 172 of the 49 CFR or any 
quantity of a material listed as a select agent or toxin in 42 CFR part 
73 must comply with the safe clearance requirements for highway-rail 
crossings in Sec.  392.12 of the FMCSRs.


    3. The authority citation for part 392 is revised to read as 

    Authority: 49 U.S.C. 13902, 31136, 31151, 31502; Section 112 of 
Pub. L. 103-311, 108 Stat. 1673, 1676 (1994); and 49 CFR 1.73.

    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 January 20, 2011 under authority 
delegated in 49 CFR part 1.

    By the Federal Motor Carrier Safety Administration.
Anne S. Ferro,
    By the Pipeline and Hazardous Materials Safety Administration.
Cynthia L. Quarterman,
[FR Doc. 2011-1841 Filed 1-27-11; 8:45 am]