Commercial Driver Disqualification Provision |
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Kenneth R. Wykle
Federal Highway Administration
March 2, 1998
[Federal Register: March 2, 1998 (Volume 63, Number 40)]
[Proposed Rules]
[Page 10180-10183]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02mr98-18]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 383 and 384
[FHWA Docket No. FHWA-97-3103]
RIN 2125-AE28
Commercial Driver Disqualification Provision
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA is proposing regulations specifying that commercial
motor vehicle (CMV) drivers who are convicted of violating laws or
regulations pertaining to railroad-highway grade crossings be
disqualified from operating a CMV. This proposal also would assess
penalties against employing motor carriers found to have knowingly
allowed, permitted, authorized, or required a driver to operate a CMV
in violation of laws or regulations pertaining to railroad-highway
grade crossings. This action is in response to the requirements
specified in section 403 of the ICC Termination Act (ICCTA) of 1995.
The purpose of this proposal is to enhance the safety of CMV operations
on our nation's highways.
DATES: Comments must be received on or before May 1, 1998.
ADDRESSES: Interested persons are invited to submit written, signed
comments regarding this proposal to Docket Clerk, U.S. DOT Dockets,
Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All
comments received will be available for examination at the above
address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except
Federal holidays. Those desiring notification of receipt of comments
must include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT:
Mr. David Goettee, Driver Division, Office of Motor Carrier Research
and Standards, (202) 366-4001, or Mr. Charles Medalen, Office of the
Chief Counsel, (202) 366-0834, Federal
[[Page 10181]]
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
Electronic Bulletin Board Service at (202) 512-1661. Internet users may
reach the Federal Register's home page at: http://www.nara.gov/nara/
fedreg and the Government Printing Office's database at: http:///
www.access.gpo/su __ docs.
Background
The goal of section 403 of the ICCTA [Pub. L. 104-88, 109 Stat.
803, 956, December 29, 1995, codified at 49 U.S.C. 31310(h) and
31311(a)(18)] is to achieve safer CMV driver behavior when CMVs are
crossing railroad-highway grade crossings. Section 403 amended the
Commercial Motor Vehicle Safety Act (CMVSA) of 1986 by adding
subsection (h) to 49 U.S.C. 31310. The amendment requires sanctions and
penalties for CMV drivers who are convicted of violating laws or
regulations pertaining to railroad-highway grade crossings.
The amendment also requires monetary penalties be assessed against
employers found to have knowingly allowed, permitted, authorized, or
required an employee to operate a CMV in violation of a law or
regulation pertaining to railroad-highway grade crossings. It requires
States to adopt and enforce the Federal sanctions and penalties
prescribed for CMV drivers and employing motor carriers who violate
laws or regulations pertaining to railroad-highway grade crossings.
According to a March 1, 1996, U.S. Department of Transportation
report on railroad-highway grade crossing accidents for the year 1994,
entitled ``Accidents Which Shouldn't Happen,''\1\ 615 individuals were
killed and 1,961 persons were injured in 4,979 collisions with trains
at railroad-highway grade crossings in the United States. The same
report says:
\1\ ``Accidents Which Shouldn't Happen: A Report of the Grade
Crossing Safety Task Force to Secretary Federico Pena,'' March 1,
1996. This task force report has been placed in the public docket
for this rulemaking.
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Laws against grade crossing violations are ineffective if they
are not enforced and associated with penalties that are strong
enough to deter future violations. The public, enforcement officers,
and judges all need to be aware of the danger associated with grade
crossing violations. Grade crossing safety systems cannot prevent
collisions if the parties that use and control these crossings do
not act responsibly.
One of the recommendations in the report is that all States should
have or enact laws levying sanctions including fines and other
penalties against persons convicted of railroad-highway grade crossing
violations.
The follow-up report\2\ issued to report progress on implementation
of the recommendations contained in the above report observed:
\2\ ``Implementation Report of the USDOT Grade Crossing Safety
Task Force: Report to Secretary Rodney E. Slater,'' June 1, 1997,
publication number FHWA-SA-97-085. This task force report has been
placed in the public docket for this rulemaking.
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The principal finding of the Task Force report was that
``improved highway-rail grade crossing safety depends upon better
cooperation, communication, and education among responsible parties
if accidents and fatalities are to be reduced significantly.''
The FHWA believes the proposed changes contained in this NPRM will
be of assistance in fostering a change in how motor carriers perceive
the importance of railroad-highway grade crossings, and thus will
assist in achieving greater cooperation, communication, and education
regarding this important issue from the perspective of commercial
drivers and their employers.
Section Analysis
Section 383.37 Employer Responsibilities
Section 403 of the ICCTA prescribes a more stringent penalty for
employers regarding railroad-highway grade crossing violations than the
existing sanctions for employers using a driver while disqualified.
Because there is no specific prohibition in the current regulation to
which the prescribed sanction would apply, the FHWA proposes to add an
additional provision to 383.37 implementing this requirement.
Section 383.51 Disqualification of Drivers
Section 403 of the ICCTA requires the Secretary to establish, by
regulation, sanctions and penalties for drivers convicted of violating
railroad-highway grade crossing laws or regulations. The ICCTA requires
the penalty for a single violation to be not less than a 60-day
disqualification, but is silent on how to treat subsequent convictions.
Based on the precedents established for all other types of violations
which apply a longer penalty for subsequent convictions, and the
inherent authority to establish higher penalties for the violations
described, the FHWA proposes to revise 49 CFR 383.51 to provide an
increased period of disqualification for subsequent convictions.
In the context of other sanctions imposed in the CMVSA, violations
at railroad-highway grade crossings rank higher than other serious
traffic violations, which require sanctions of not less than a 60-day
disqualification for the second conviction and not less than a 120-day
disqualification thereafter. It is proposed therefore for a second or
subsequent conviction of a railroad-highway grade crossing violation,
the minimum disqualification period be 120 days. The FHWA proposes to
add a new paragraph (e) to 49 CFR 383.51 that specifically establishes
these driver penalties for this offense.
The ICCTA is also silent regarding the time limit between first and
subsequent violations. Referring again to the required sanctions for
serious traffic violations in 49 U.S.C. 31310(e), which employs a 3-
year period, the FHWA proposes that any subsequent conviction for
violation of a railroad-highway grade crossing law or regulation while
operating a CMV be within 3 years of an earlier conviction.
Section 383.53 Penalties
The ICCTA amendment to 49 U.S.C. 31310 specifically provides that
any motor carrier that knowingly allows, permits, authorizes, or
requires a driver to operate a CMV in violation of a law or regulation
pertaining to railroad-highway grade crossings must be subject to a
civil penalty of not more than $10,000. The maximum level specified in
the Act for this violation reflects the concern about the potentially
severe safety consequences that can result from an illegal crossing of
a railroad-highway grade crossing. The FHWA therefore proposes to add a
new paragraph (c) to the penalty provisions of 49 CFR 383.53 to
incorporate this sanction into this section.
Section 384.223 Railroad-Highway Grade Crossing Violation
As required by the ICCTA amendment to the CMVSA, the FHWA proposes
to include the requirement for the States to adopt and enforce the
sanctions and penalties relating to violations of
[[Page 10182]]
railroad-highway grade crossing laws or regulations as specified at
Secs. 383.37, 383.51, land 383.53 as a new Sec. 384.223, Railroad-
highway grade crossing violation. Thus it is proposed as the twenty-
third State CDL program substantial compliance requirement. This
proposal follows the intent of the ICCTA which specified that States
must adopt and enforce the sanctions and penalties. For State
compliance purposes, existing laws or regulations that specifically
apply to violation of railroad-highway grade crossing restrictions,
such as reckless driving or driving to endanger, will be sufficient for
complying with this requirement, provided a conviction for these
offenses invokes the specified minimum disqualification periods.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA will also continue to file in the docket relevant information that
becomes available after the comment closing date. Interested persons
should continue to examine the docket for new material. Nevertheless,
the FHWA may issue a final rule on this matter at any time after the
close of the comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not contain a
significant regulatory action under Executive Order 12866 or a
significant regulation under the regulatory policies and procedures of
the Department of Transportation.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act)
requires each agency to assess the effects of its regulatory actions on
State, local, and tribal governments and the private sector. Any agency
promulgating an NPRM likely to result in a Federal mandate requiring
expenditures by a State, local, or tribal government or by the private
sector of $100 million or more in any one year must prepare a written
statement incorporating various assessments, estimates, and
descriptions that are delineated in the Unfunded Mandates Act. The FHWA
has determined that the changes proposed in this NPRM will not have an
impact of $100 million or more in any one year.
Each of the proposed changes is a small incremental addition to an
existing process. Drivers are already being disqualified as a matter of
course when convicted of certain violations. This merely proposes to
standardize the minimum amount of disqualification drivers must receive
for violating existing laws or regulations pertaining to railroad-
highway grade crossings.
There is a potential one-time minor cost to States that may need to
modify existing laws to incorporate these proposed standardized
railroad-highway grade crossing provisions. The ongoing costs of being
in substantial compliance with the provisions in this NPRM are part of
an existing State monitoring program, and therefore will have very
little impact on ongoing State operations.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this proposed rule on small
entities. Based on the evaluation, the FHWA hereby certifies that this
proposed action would not have a significant economic impact on a
substantial number of small entities. This is based on the fact that
the FHWA believes the overwhelming majority of carriers, including
small carriers, comply with railroad-highway grade crossing laws and
regulations. Further, the FHWA believes that the adoption of this
proposed rule establishing driver disqualification and employer civil
penalties will serve as a further deterrent for drivers and/or carriers
who might otherwise have violated such laws or regulations.
Accordingly, the FHWA believes the actual imposition of these fines and
disqualifications will be infrequently required.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, which directs departments
and agencies to be guided by certain fundamental federalism principles
in formulating and implementing policies that have federalism
implications. These policies, together with the directions of the
CMVSA, have been taken fully into account in the development of this
proposal.
The federalism implications of the commercial driver's license
program were addressed in detail in the rule which established the
initial minimum standards (53 FR 27628, Thursday, July 21, 1988). A
summary of the points covered in that rule includes:
(a) The Congress determined that minimum Federal standards were
required because medium and heavy trucks are involved in a
disproportionately large percentage of fatal accidents. The States were
carefully consulted in establishing the minimum standards that were
established.
(b) The safety problem associated with CMVs is national in scope,
requiring a consistent and reciprocal approach to licensing, which
retained the basic role of the States in issuing licenses.
(c) The standard adopted deliberately allowed maximum flexibility
to the States in implementation of this program.
Thus, it is certified that the specifications contained in this
document have been assessed in light of the principles, criteria, and
requirements of the Federalism Executive Order, and they accord fully
with the letter and spirit of the President's Federalism initiative.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities to not apply to this program.
Paperwork Reduction Act
For purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.
3501-3520, this action contains no information requirements not already
approved for the CDL program and its associated information system, the
commercial driver's license information system (CDLIS).
National Environmental Policy Act
The FHWA has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4211 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
[[Page 10183]]
List of Subjects in 49 CFR Parts 383 and 384
Commercial driver's license, Commercial motor vehicles, Highways
and roads, Motor carriers, Motor vehicle safety, and Railroad-highway
grade crossing.
Issued: February 23, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
In consideration of the foregoing, the FHWA hereby proposes to
amend Title 49, Code of Federal Regulations, Chapter III, as set forth
below.
PART 383--[AMENDED]
1. The authority citation for 49 CFR Part 383 is revised to read as
follows:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.48.
2. Section 383.37 is revised to read as follows:
Sec. 383.37 Employer responsibilities.
No employer may knowingly allow, require, permit, or authorize a
driver to operate a CMV in the United States:
(a) During any period in which the driver has a CMV driver's
license suspended, revoked, or canceled by a State, has lost the right
to operate a CMV in a State, or has been disqualified from operating a
CMV;
(b) During any period in which the driver has more than one CMV
driver's license, except during the 10-day period beginning on the date
such driver is issued a driver's license;
(c) During any period in which the driver, or the CMV he or she is
driving, or the motor carrier operation, is subject to an out-of-
service order; or
(d) In violation of a law or regulation pertaining to railroad-
highway grade crossings.
3. In Sec. 383.51, paragraph (e) is redesignated as paragraph (f),
and a new paragraph (e) is added to read as follows:
Sec. 383.51 Disqualification of drivers.
* * * * *
(e) Disqualification for railroad-highway grade crossing
violation--(1) General rule. A driver who is convicted of operating a
CMV in violation of a law or regulation pertaining to railroad-highway
grade crossings must be disqualified for the period of time specified
in paragraph (e)(2) of this section.
(2) Duration of disqualification for railroad-highway grade
crossing violation--(i) First violation. A driver must be disqualified
for not less than 60 days, if the driver is convicted of a first
violation of a railroad-highway grade crossing violation.
(ii) Second or subsequent violation. A driver must be disqualified
for not less than 120 days, if during any 3-year period, the driver is
convicted of a second or subsequent railroad-highway grade crossing
violation in separate incidents.
(f) * * *
4. Section 383.53 is amended by adding a new paragraph (c) to read
as follows:
Sec. 383.53 Penalties.
* * * * *
(c) Special penalties pertaining to railroad-highway grade crossing
violations. An employer who is convicted of a violation of
Sec. 383.37(d) must be subject to a civil penalty of not more than
$10,000.
PART 384--[AMENDED]
5. The authority citation for 49 CFR Part 384 continues to read as
follows:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.48.
6. Part 384 is amended by adding Sec. 384.223 to read as follows:
Sec. 384.223 Railroad-highway grade crossing violation.
The State must have and enforce laws and/or regulations applicable
to CMV drivers and their employers, as defined in Sec. 383.5 of this
title, which meet the minimum requirements of Secs. 383.37(d),
383.51(e), and 383.53(c) of this title.
[FR Doc. 98-5097 Filed 2-27-98; 8:45 am]
BILLING CODE 4910-22-M