[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 58915-58923]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23375]


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DEPARTMENT OF TRANSPORTATION

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: Final rule.

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SUMMARY: FMCSA and PHMSA amend the Federal Motor Carrier Safety 
Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs), 
respectively, to prohibit a driver of a commercial motor vehicle or of 
a motor vehicle transporting certain hazardous materials or certain 
agents or toxins (hereafter collectively referenced as ``regulated 
motor vehicle'') 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, as 
amended by section 32509 of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21). The intent of this rulemaking is to reduce 
highway-rail grade crossing crashes.

DATES: This rule is effective October 25, 2013.

[[Page 58916]]


ADDRESSES: You may review the final rule, the technical supporting 
documents, economic analysis, environmental assessment, and public 
comments for this proceeding identified by Federal Docket Management 
System Numbers PHMSA-2010-0319 (HM-255) and FMCSA-2006-25660.
    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.

FOR FURTHER INFORMATION CONTACT: At FMCSA: Mr. Thomas Yager, Driver and 
Carrier Operations, (202) 366-4325 or MCPSD@dot.gov, Federal Motor 
Carrier Safety Administration, U.S. Department of Transportation, 1200 
New Jersey Avenue SE., Washington, DC 20590-0001. 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 or phmsa.hmhazmatsafety@dot.gov, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose and Summary of the Final Rule

    This action is in response to section 112 of the Hazardous 
Materials Transportation Authorization Act of 1994 (HMTAA), as amended 
by section 32509 of MAP-21. The intent of this rulemaking is to reduce 
highway-rail grade crossing crashes. FMCSA and PHMSA implement the 
statutory mandate enacted in section 112 of the HMTAA, as amended, by 
changing the FMCSRs and HMRs, respectively, to prohibit drivers of 
regulated motor vehicles from entering onto a highway-rail grade 
crossing unless there is sufficient space to drive completely through 
the grade crossing without stopping. The Agencies published the notice 
of proposed rulemaking (NPRM) for this final rule on January 28, 2011 
(76 FR 5120), which also included a history of actions from 1998 
through 2006 that led to the 2011 NPRM.

B. Costs and Benefits

    As explained in section VI. Regulatory Analyses below, FMCSA and 
PHMSA expect 2.62 fewer crashes per year, when all States adopt rules 
compatible with this Federal rule,\1\ and 0.3 fewer train 
derailments.\2\
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    \1\ 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.
    \2\ 14 derailments/122 grade crossing incidents x 2.62 incidents 
prevented equals 0.3 fewer train derailments.
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    FMCSA and PHMSA estimate the total annual benefits from crashes 
avoided to be approximately $946,000. This consists of $473,000 in 
reduced injuries, $1,800 in reduced hazardous material spills, $33,000 
in reduced highway property damage, and $438,000 in reduced costs for 
train derailments. Total implementation costs per year are estimated to 
be $302,300 in the first year, based on the added costs to State 
enforcement agencies of administrative, enforcement, or training 
activities. The additional costs for driver training should be small as 
the training would occur as a modification of emphasis in existing 
railroad grade crossing training curricula. Railroad grade crossing 
training curricula for drivers would include training to comply with 
eight FMCSRs related to the safe operation of regulated motor vehicles 
at railroad grade crossings and penalties for non-compliance with these 
railroad grade crossing safe operation rules. In addition, drivers who 
operate in States with existing laws similar to the regulations in this 
final rule will be familiar with the requirements. The costs are 
projected to be about $11,200 in each of the 27 states (including the 
District of Columbia) that do not have an existing law or regulation 
similar to the requirements in the final rule. Thus, the annual net 
benefits from implementation of this final rule in the first year 
should be about $644,000. In subsequent years, there would be no costs, 
thus, $946,000 would be saved in subsequent years.
    Table ES-1 displays the 10-year average annual and discounted net 
costs and benefits of the statute that we are implementing in this 
final rule.\3\
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    \3\ Note that the numbers for the 10-year costs and the discount 
rates differ from what was presented in the NPRM's RIA due to a 
discovery of a minor mathematical error, the updating to current 
year costs with the new estimated average economic value of a 
statistical life for injury crashes (VSL), and the removal of annual 
fatality benefits, because zero fatal crashes were found in the 
analysis period of 1998-2005. The estimated mean VSL is derived from 
the DOT memorandum, ``Treatment of the Economic Value of a 
Statistical Life in Departmental Analyses,'' February 28, 2013. See 
http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance%202013.pdf.

  Table ES-1--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Final Grade
                                           Crossing Storage-Space Rule
                                      [2013 dollars, in thousands, rounded]
----------------------------------------------------------------------------------------------------------------
                                                                                      10-year         10-year
                                    First year     Annual impact   10-year total  (Discounted at  (Discounted at
                                      impact       (years 2-10)                    3  percent) *   7  percent) *
----------------------------------------------------------------------------------------------------------------
Benefits........................            $946            $946          $9,460          $8,312          $7,109
Costs...........................             302               0             302             265             227
                                 -------------------------------------------------------------------------------
    Net Benefits................             644             946           9,158           8,047           6,882
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* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular
  A[dash]4, Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.

II. Background and Legal Basis for the Rulemaking

    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, as amended by section 32509 of the Moving Ahead for 
Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 
405, 805, July 6, 2012] provides as follows:

    Sec. 112 Grade Crossing Safety.

[[Page 58917]]

    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 311 of such title (relating to commercial 
motor vehicle 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.

    The report by the Senate Committee on Commerce, Science, and 
Transportation states that section 112 is intended 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 number of fatalities resulting from such accidents 
often is increased because of the presence of hazardous materials. . 
. . [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[hellip]will help to 
reduce the number of tragedies associated with grade crossing 
accidents.

S. Rep. No. 103-217, at 11 (December 9, 1993), reprinted in 1994 
U.S.C.C.A.N. 1763, 1773). In sum, section 112 specifically directs DOT 
to prohibit drivers of motor vehicles subject to Federal hazmat law and 
the HMRs issued thereunder and the commercial motor vehicle operators 
subject to 49 U.S.C. chapter 311 and the FMCSRs issued thereunder from 
driving ``onto a highway-rail grade crossing without having sufficient 
space to drive completely through the crossing without stopping.'' 
PHMSA and FMCSA are carrying out this statutory mandate in this final 
rule.
    With respect to section 112(1), PHMSA has been delegated the 
authority in Federal hazardous material transportation law (Federal 
hazmat law), chapter 51 of Title 49 U.S.C., to ``designate material . . 
. or a group or class of material as hazardous when the Secretary 
determines that transporting the material in commerce in a particular 
amount and form may pose an unreasonable risk to health and safety or 
property'' and to ``prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce'' which apply to a person who ``transports 
hazardous material in commerce.'' 49 U.S.C. 5103(a), (b)(1); see 49 CFR 
1.97(b)(2).
    With respect to section 112(2), FMCSA has been delegated authority 
under the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 
98 Stat. 2832, October 30, 1984), as amended, to ``prescribe 
regulations on commercial motor vehicle safety'' in order to ensure 
that ``commercial motor vehicles are . . . operated safely.'' See 49 
U.S.C. 31136(a)(1); \4\ 49 CFR 1.87(f). Other factors under 49 U.S.C. 
31136(a)(1) (commercial motor vehicle maintenance, equipment, and 
loading), and factors under section 31136(a)(2) (responsibilities on 
drivers not to impair safe commercial motor vehicle operation) and (3) 
(physical condition of drivers enables safe commercial motor vehicle 
operation) are not germane to this rulemaking. Section 31136(a)(4) 
(commercial motor vehicle operation does not have deleterious effect on 
driver's physical condition) is only indirectly related in that this 
rule will protect drivers from certain accidents/crashes. Finally, 
given the minimal distances and time required to avoid prohibited rail 
grade crossings, the lack of opportunity for motor carriers, shippers, 
receivers, and transportation intermediaries to communicate timely with 
drivers regarding decisions to cross, and the obvious personal safety 
risk to the commercial motor vehicle operator of attempting to cross 
where the is not sufficient space, the Agency considers any risk of 
driver coercion under 49 U.S.C. 31136(a)(5) (commercial motor vehicle 
operator not to be coerced by motor carrier, shipper, receiver, or 
transportation intermediary into operating commercial motor vehicle in 
violation of certain regulations) in connection with this rulemaking to 
be negligible.
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    \4\ For purposes of section 31136, ```commercial motor vehicle' 
means a self-propelled or towed vehicle used on the highways in 
interstate commerce to transport passengers or property, if the 
vehicle has a gross vehicle weight rating or gross vehicle weight of 
at least 10,001 pounds, whichever is greater; is designed or used to 
transport more than 8 passengers (including the driver) for 
compensation; is designed or used to transport more than 15 
passengers, including the driver, and is not used to transport 
passengers for compensation; or is used in transporting material 
found by the Secretary of Transportation to be hazardous materials 
under section 5103 of this title and transported in a quantity 
requiring placarding under regulations prescribed by the Secretary 
under section 5103.
    49 U.S.C. 31132(1); see also 49 CFR 390.5.
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III. History

    PHMSA and FMCSA published the NPRM for this final rule on January 
28, 2011 (76 FR 5120). That notice included a history of FMCSA's and 
its predecessor's actions from 1998 through 2006 that led to the 2011 
NPRM. The 2011 NPRM provides a discussion of the history of this 
proceeding, including the survey of State statutes on grade crossings 
laws, grade crossing safety outreach activities, and the 2006 public 
meeting that provided interested parties an opportunity to express 
their views before issuance of the January 28, 2011 NPRM.
    Since publication of the NPRM, section 112(2) was amended in MAP-21 
to correct the statutory reference from chapter 315 to chapter 311 
(``commercial motor vehicle safety'') of Title 49, United States Code. 
This clarifies that the authority for FMCSA's final rule is the 
direction to ``prescribe regulations on commercial motor vehicle 
safety'' in section 31136. Accordingly, with respect to the final rule 
issued by FMCSA, the definition of ``commercial motor vehicle'' in 49 
U.S.C. 31132(1) and 49 CFR 390.5 applies to the prohibition being 
adopted in 49 CFR 392.12.\5\
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    \5\ FMCSA acknowledges a drafting error in the NPRM resulting in 
an inconsistency between the preamble and the proposed regulatory 
text. Whereas the preamble addressed FMCSA's authority over ``motor 
carrier[s]'' and ``motor private carrier[s],'' terms used in chapter 
315 of Title 49, the regulatory text in proposed 49 CFR 392.12 
referenced ``commercial motor vehicle[s],'' as defined 49 CFR 390.5, 
and consistent with chapter 311 of Title 49 and related provisions 
in the FMCSRs, issued under the authority of Sec.  31136. See, e.g. 
49 CFR 392.11 (Railroad grade crossings; slowing down required). 
However, none of the commenters addressed that anomaly. The 
amendments to section 112 of the HMTAA by MAP-21 ratified the 
reference to ``commercial motor vehicle'' in 49 CFR 392.12 as 
proposed in the NPRM and adopted in this final rule.
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    In the NPRM, PHMSA proposed to add a new paragraph 49 CFR 
177.804(b) to the HMR, making the prohibition in 49 CFR 392.12 
applicable to drivers of motor vehicles transporting a quantity of 
hazardous materials requiring placarding under subpart F of 49 CFR part 
172 or a material listed as select agent or toxin listed in 42 CFR part 
73. As discussed, this would make the prohibition against driving onto 
a highway-rail grade crossing without having sufficient space to drive 
completely through the crossing without stopping applicable to 
``drivers of motor vehicles of any size that are used to transport 
[these materials]. Additionally, it includes drivers engaged in 
intrastate or interstate commerce.'' 76 FR at 5122; see also id. at 
5123-24.
    However, 49 CFR 177.804(b) is no longer available, because in a 
final rule published on February 28, 2011, PHMSA (in coordination with 
FMCSA) adopted a new Sec.  177.804(b) providing that ``a person 
transporting a quantity of hazardous materials requiring

[[Page 58918]]

placarding under 49 CFR part 172 or any quantity of a material listed 
as a select agent or toxin in 42 CFR part 73 may not engage in, allow, 
or require texting while driving.'' 76 FR 10771, 10778. PHMSA (also in 
coordination with FMCSA) adopted a new Sec.  177.804(c) on December 2, 
2011, providing that ``a person transporting a quantity of hazardous 
materials requiring placarding under Part 172 [of 49 CFR] or any 
quantity of a material listed as a select agent or toxin in 42 CFR part 
73 may not engage in, allow, or require use of a hand-held mobile 
telephone while driving.'' 76 FR 75470, 75485-6.
    Therefore, as all the recent joint PHMSA and FMCSA rules have been 
applicable to ``a person transporting a quantity of hazardous materials 
requiring placarding under 49 CFR part 172 or any quantity of a 
material listed as a select agent or toxin in 42 CFR part 73,'' PHMSA 
is consolidating this final rule with the anti-texting and anti-mobile-
telephone rules by creating a new introductory phrase at 49 CFR 
177.804(b) that reads as set forth in the regulatory text of this rule; 
and adopting three subparagraphs: (b)(1) the substance of the 
prohibition proposed in the NPRM; (b)(2) the prohibition against 
texting while driving; and (b)(3) the prohibition against using a hand-
held mobile telephone while driving. The cross-reference to the 
definition of ``hazardous materials'' in 49 CFR 383.5 is deleted 
because it is not needed. As in the current provisions against texting 
and hand-held mobile telephone use previously located in 49 CFR 
177.804(b) and (c), these categories appear to be the materials with 
which the Senate Report had concern in stating that the ``number of 
fatalities resulting from [highway-rail grade crossing] accidents often 
is increased because of the presence of hazardous materials.'' 1994 
U.S.C.C.A.N. at 1773.

IV. Comments on the Proposed Rule

Overview of Comments

    FMCSA and PHMSA received 16 comments to the jointly issued NPRM. 
Comments were received from two truck drivers, four private 
individuals, and the following industry associations, State agencies, 
and advocacy groups:

Association of American Railroads (AAR)
American Trucking Associations, Inc. (ATA)
National Association of Chemical Distributors (NACD)
National Tank Truck Carriers, Inc. (NTTC)
Owner Operator Independent Drivers Association, Inc. (OOIDA)
California Public Utilities Commission (CPUC)
Nebraska Department of Roads (NEDR)
North Carolina Department of Transportation (NCDOT)
Commercial Vehicle Safety Alliance (CVSA)
Advocates for Highway and Auto Safety (Advocates).

    A private individual, the AAR, and the NCDOT fully support the 
proposal. The CVSA and the CPUC support the proposal, but believe it 
will be difficult to enforce.
    Other comments and responsive considerations are as follows.

Require Others To Mark Crossings

    The two truck drivers, ATA, NACD, NTTC, and Advocates recommend 
that FMCSA and PHMSA require State and local jurisdictions to specially 
mark and provide signs at the 21,208 grade crossings that the proposal 
identified as likely having limited clear storage distances to 
accommodate commercial motor vehicles.
    Response. As FMCSA and PHMSA indicated in the NPRM, recommendations 
to require States and local jurisdictions have been made previously. 
The Agencies have a clear mandate from Congress to prohibit a driver of 
a regulated motor vehicle from driving the vehicle onto a highway-rail 
grade crossing without having sufficient space to drive completely 
through the crossing without stopping. FMCSA and PHMSA lack authority 
to require the States and local governments to install markings and 
signage as suggested.
    Further, as discussed in the NPRM, Federal Highway Administration 
(FHWA) has funding available annually under the Highway Safety 
Improvement Program (HSIP) \6\ for a variety of highway safety 
improvement projects. Eligible projects include (1) construction and 
improvement of a railway-highway grade crossing safety feature, 
including the installation of protection devices; (2) installation, 
replacement, and other improvements of highway signage and pavement 
markings or projects to maintain minimum levels of retroreflectivity 
that address a highway safety problem consistent with a State strategic 
highway safety plan; and (3) installation of traffic control or other 
warning devices at locations with high crash potential.
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    \6\ See 23 U.S.C. 104(b)(3) (``Highway Safety Improvement 
Program''). Improvements qualify as ``highway safety improvement 
project[s]'' under 23 U.S.C. 148(a). See also 23 CFR part 924, 
Highway Safety Improvement Program.
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    Also, FHWA has funding available under the Railway-Highway 
Crossings Program (23 U.S.C. 130) for the elimination of hazards at 
grade crossings. FMCSA and PHMSA have brought commenters' suggestions 
to the attention of FHWA. We noted in the NPRM 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.

Logistical Challenges

    In its comments, ATA noted that there are logistical challenges in 
implementing and enforcing the rule. OOIDA noted that the Agencies 
erroneously assumed drivers are aware of crossings consisting of 
inadequate storage space and that alternative routes exist.
    Response. While we acknowledge commenters' concerns, FMCSA and 
PHMSA do not believe the logistical challenges warrant a further delay 
in issuing the rule. The rule places upon drivers the responsibility to 
approach grade crossings with caution and to avoid going through the 
crossing unless there is enough room to completely clear the tracks 
without stopping. Admittedly, this may be difficult without knowing in 
advance all the crossings that may be along the route, the space around 
those crossings, and where there are traffic control devices and 
intersections that could result in a driver being forced to stop 
unexpectedly before clearing the track. The Agencies encourage 
enforcement discretion in those circumstances. However, the statutory 
mandate is clear and the Agencies do not have discretion whether to 
issue the rule, as drafted. The Agencies note that motor carriers are 
required by Sec. Sec.  397.67 and 397.101 to plan routes for certain 
hazardous material shipments and create a written route plan document 
for the driver. To the extent practicable, this mandatory planning 
should include preparation for grade crossings.
    In addition, the Agencies remind all those involved with the 
arrangement for transportation services that the National 
Transportation Safety Board (NTSB) has found situations where shippers 
and receivers often know of the logistical and physical challenges 
truck drivers would face in getting to their loading and delivery 
locations, yet fail to communicate those challenges to the carrier and 
driver.\7\ Therefore, motor

[[Page 58919]]

carriers and brokers should ask shippers and receivers about any 
logistical or physical challenges that might exist near, or on the 
roads leading to, loading and delivery locations. The Agencies 
recognize that avoidance of problematic grade crossings will not always 
be practicable. However, in many cases, industry will have 
opportunities to effectively address this issue.
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    \7\ National Transportation Safety Board. 2002. Collision 
Between Amtrak Train 97 and Molnar Worldwide Heavy Haul Company 
Tractor-Trailer Combination Vehicle at Highway-Rail Grade Crossing 
in Intercession City, Florida, on November 17, 2000, Highway 
Accident Summary Report. NTSB/HAR-02/02. Washington, DC. The NTSB 
determined ``that the probable cause of the November 2000 collision 
of Amtrak train 97 with the tractor-combination vehicle was the 
failure of the Kissimmee Utility Authority, its construction 
contractors and subcontractors, and the motor carrier to provide for 
the safe passage of the load over the grade crossing.'' http://www.ntsb.gov/doclib/reports/2002/HAR0202.pdf.
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Access to Grade Crossing Information

    OOIDA noted that maps, global positioning systems (GPS), and 
internet-generated directions often do not include grade crossing 
information, let alone storage space information. ATA suggested that 
motor carriers are more frequently using GPS and other guidance 
technologies to plot routes. Because these technologies can 
specifically target certain locations if those locations have been 
built into the technology's databases, ATA suggested the Agencies share 
their data reflecting the locations of these grade crossings with GPS 
device manufacturers. The Agencies should encourage manufacturers to 
incorporate these points into their products so that grade crossings 
can be displayed and detoured around when necessary.
    Response. The Agencies agree that data about the locations of 
potentially problematic grade crossings should be made available to the 
industry and GPS navigation system service providers, whenever 
possible. The Agencies worked with the John A. Volpe National 
Transportation Systems Center (Volpe) to conduct a variety of 
supplemental analyses which augment the Federal Railroad Administration 
(FRA) Grade Crossing Inventory System (GCIS) data that is available to 
the public. The GCIS served as the initial basis for determining the 
set of highway-rail grade crossings at which insufficient clear storage 
distance may be a concern. Volpe supplemented data from the GCIS with 
grade crossing latitude and longitude coordinate information available 
through the FRA's Office of Policy and Program Development.\8\
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    \8\ Proprietary digital road network data files were also used 
and analyzed for potential storage space issues on the basis of 
geographic information system (GIS) techniques described in more 
detail in the docketed study. The procedures the Agencies used to 
create the dataset are fully explained in the technical supporting 
document.
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    In June 2013, FRA released a mobile phone application (app) for 
Apple brand iPhoneTM and iPadTM users. The Rail 
Crossing Locator mobile app provides users with access to grade 
crossing inventory information and accident data from the GCIS 
database. The application allows users to: locate crossings by USDOT 
Crossing ID, address or geo-location; access inventory records 
submitted by states and railroads; and view accident history. Users can 
also select from multiple base map features to see the crossing 
location, expand or narrow the buffer radius of a location, or get 
detailed information about a specific crossing. The inventory record 
for a public crossing will provide information about the presence of a 
nearby intersection as follows: less than 75 feet, 75 to 200 feet, and 
200 to 500 feet and if the intersection has a traffic signal. Although 
this app will not provide complete information to ensure compliance 
with the rule, it will assist drivers in more strategically planning 
their routes. FMCSA and PHMSA remind regulated vehicle drivers of their 
duty to follow both Sec.  392.82, prohibiting a driver from using a 
hand-held mobile telephone while driving, and current Sec.  177.804(c), 
being reorganized and renumbered as Sec.  177.804(b)(3) in this final 
rule, prohibiting certain intrastate HM drivers from using a hand-held 
mobile telephone while driving. Industry and GPS navigation system 
service providers can now use the Rail Crossing Locator mobile app to 
plot routes to comply with this final rule.

Exception When No Reasonable Alternative Routes Are Available

    The Nebraska Department of Roads and OOIDA suggested the rule 
should include an exception to allow for situations where there is no 
reasonable alternate route available. They argue that in rural States 
and industrial areas there are many crossings where no reasonable 
detour route exists. Nebraska also argued that the potential cost to 
implement the rule in Nebraska would be an unfunded mandate.
    Response. As indicated above, in many situations, communications 
among shippers, receivers, freight forwarders, brokers, and motor 
carriers about issues in the vicinity of pick-up and drop-off points 
that may make it difficult for large trucks, especially combination 
vehicles, may help to address this issue. However, the Agencies 
acknowledge alternative routes may not be available. In certain 
circumstances, the railroad could be brought into the planning 
conversation with regard to the train schedules as the specialized 
equipment hauling industry does regularly and as the NTSB recommended 
in its 2002 report about the November 17, 2000, crash in Intercession 
City, FL.\9\
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    \9\ National Transportation Safety Board. 2002. Collision 
Between Amtrak Train 97 and Molnar Worldwide Heavy Haul Company 
Tractor-Trailer Combination Vehicle at Highway-Rail Grade Crossing 
in Intercession City, Florida, on November 17, 2000, Highway 
Accident Summary Report. NTSB/HAR-02/02. Washington, DC. The NTSB 
determined ``that the probable cause of the November 2000 collision 
of Amtrak train 97 with the tractor-combination vehicle was the 
failure of the Kissimmee Utility Authority, its construction 
contractors and subcontractors, and the motor carrier to provide for 
the safe passage of the load over the grade crossing.'' http://www.ntsb.gov/doclib/reports/2002/HAR0202.pdf.
---------------------------------------------------------------------------

Consistency With Executive Order 13563

    Citing Executive Order 13563, ``Improving Regulation and Regulatory 
Review,'' which President Obama issued in January 2011, a commenter 
urged the withdrawal of the NPRM.
    Response. The final rule is required by statute and nothing in the 
Executive Order suggests that the Agency should delay implementation of 
statutory provisions for which the options for implementation are as 
limited as the 1994 provision implemented in today's final rule. The 
rule will reduce regulated motor vehicle-train crashes, while having 
relatively small impacts on business productivity.

Intrastate Transportation of Hazardous Materials

    An anonymous commenter stated that ``the proposed rule is a direct 
attack on the sovereignty of the several states'' on the alleged ground 
that the Commerce Clause in Article I, Section 8 of the U.S. 
Constitution authorizes Congress only ``[t]o regulate Commerce with 
foreign nations, and among the several States, and with the Indian 
Tribes.''
    Response: In United States v. Lopez, 514 U.S. 549, 558-559 (1995), 
and United States v. Morrison, 529 U.S. 598, 608-609 (2000), the 
Supreme Court observed that ``modern Commerce Clause jurisprudence'' 
has ``identified three broad categories of activity that Congress may 
regulate under its commerce power * * *
     ``First, Congress may regulate the use of the channels of 
interstate commerce . . .
     ``Second, Congress is empowered to regulate and protect 
the instrumentalities of interstate commerce, or persons or things in 
interstate commerce, even though the threat may come only from 
intrastate activities . . .
     ``Finally, Congress' commerce authority includes the power 
to regulate those activities having a substantial relation to 
interstate commerce, . . .

[[Page 58920]]

i.e., those activities that substantially affect interstate commerce.'' 
(internal citations omitted).
    Accordingly, there is no doubt that Congress is empowered to 
regulate ``activities that substantially affect interstate commerce.'' 
Congress has explicitly done this by providing that the purpose of the 
Federal hazardous material transportation law ``is to protect against 
the risks to life, property, and the environment that are inherent in 
the transportation of hazardous material in intrastate, interstate, and 
foreign commerce,'' 49 U.S.C. 5101, and defining ``commerce'' to 
include ``trade or transportation in the jurisdiction of the United 
States . . . that affects trade or transportation between a place in a 
State and a place outside of the State.'' 49 U.S.C. 5102(1).\10\
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    \10\ As enacted in 1975, the Hazardous Material Transportation 
Act declared that it was ``the policy of Congress in this chapter to 
improve the regulatory and enforcement authority of the Secretary of 
Transportation to protect the Nation adequately against the risks to 
life and property which are inherent in the transportation of 
hazardous material in commerce.'' Public Law 93-633, Title I, sec. 
102, 88 Stat. 2156 (Jan. 3, 1975). In the same Act, ``commerce'' was 
defined to mean ``trade, traffic, commerce, or transportation, 
within the jurisdiction of the United States, (A) between a place in 
a State and any place outside of such State, or (B) which affects 
trade, traffic, commerce, or transportation described in clause 
(A).'' Id., sec. 103(1).
---------------------------------------------------------------------------

    In the Lopez and Morrison cases, the Supreme Court noted that, 
``[w]here economic activity substantially affects interstate commerce, 
legislation regulating that activity will be sustained.'' 514 U.S. at 
560, 529 U.S. at 610. Here, the transportation of hazardous materials 
in commerce directly involves an economic activity, and the safety of 
intrastate transportation of hazardous materials has the potential of a 
substantial effect on interstate transportation of both hazardous and 
non-hazardous materials. Indeed, a crash at a highway-rail grade 
crossing involving any motor vehicle transporting hazardous materials 
necessarily has a direct effect upon the train involved in that crash, 
and that grade crossing is part of the national railroad system. 
Moreover, a grade crossing crash may result in injuries and fatalities 
to members of the train crew as well as to the motor vehicle operator, 
his or her passengers, and other persons in the vicinity of the crash.
    For these reasons, we disagree that the prohibition adopted in this 
final rule is in violation of the Commerce Clause of the U.S. 
Constitution.

Expand Applicability to All Vehicles

    A commenter suggested FMCSA and PHMSA should expand the 
applicability of this final rule to ``all vehicles'' and ``not just 
Commercial vehicles'' that cross highway-rail grade crossings. She 
stated that this is a dangerous problem for all traffic as she lives 
near a grade crossing and sees vehicles trapped on the tracks 
regularly.
    Response. As discussed above, PHMSA has authority to prescribe 
regulations for the transportation of hazardous material ``in 
intrastate, interstate, and foreign commerce.'' 49 U.S.C. 5103(b)(1). 
For this reason, the HMRs do not apply to ``[t]ransportation of a 
hazardous material by an individual for non-commercial purposes in a 
private motor vehicle.'' 49 CFR 171.1(d)(6). Similarly, FMCSA has 
authority to ``prescribe regulations on commercial motor vehicle 
safety.'' 49 U.S.C. 31136(a). But neither Agency has statutory 
authority to regulate non-commercial vehicles, i.e., vehicles not 
transporting persons or property in commerce. Accordingly, in HMTAA 
section 112, Congress directed DOT to prohibit the driver of ``a motor 
vehicle transporting hazardous materials in commerce'' or ``any 
commercial motor vehicle'' from entering a highway-rail grade crossing 
when there was not ``sufficient space to drive completely through the 
crossing without stopping.'' (emphasis supplied). This final rule 
carries out that mandate without going beyond the statutory authority 
of the two Agencies.

V. The Final Rule

49 CFR 392.12

    This final rule implements the statutory mandate enacted in section 
112 of the HMTAA, as amended. The rule prohibits regulated motor 
vehicles from using certain grade crossings.
    To proceed through a grade crossing with inadequate storage 
distance, a driver of a regulated motor vehicle will have to either 
ignore the traffic control device or comply with the traffic control 
device but violate the rule by driving onto the grade crossing without 
having sufficient space to drive completely through the crossing 
without stopping. As discussed earlier, the shipper, receiver, broker, 
and motor carrier should communicate about problematic routes in 
advance to avoid placing drivers in such untenable positions by re-
routing standard-sized regulated motor vehicles around such grade 
crossings, using smaller regulated motor vehicles at the crossings, or 
ensuring that the railroad company is informed well ahead of the 
planned crossing time and is given an opportunity to inform train crews 
and flagmen. Also, as discussed earlier, FRA's Rail Crossing Locator 
mobile app will provide access to grade crossing inventory information 
that will assist drivers in more strategically planning their routes to 
avoid problematic grade crossings.

49 CFR 177.804

    To ensure that the statutory language of section 112, as amended, 
applies to both interstate and intrastate motor carriers transporting 
hazardous materials, PHMSA revises 49 CFR 177.804. PHMSA has revised 
paragraph (b) by creating a new introductory phrase as set forth in the 
regulatory text of this rule. New paragraph (b)(1) requires the driver 
of a motor vehicle transporting this type and quantity of hazardous 
materials to comply with the safe clearance requirements for highway-
rail crossings in 49 CFR 392.12. 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. Current 
paragraph (b) has become paragraph (b)(2), and current paragraph (c) 
has become paragraph (b)(3).

VI. Regulatory Analyses

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory 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, as supplemented by Executive Order 13563, issued January 18, 
2011 (76 FR 3821). FMCSA and PHMSA expect the final rule will have 
minimal costs and generate minimal public interest. Of the 16 comments 
submitted to the January 28, 2011 NPRM, none provided data or 
information that would suggest the economic impact would meet or exceed 
the threshold for the Executive Order.

Costs and Benefits of Rule Implementation

    The Agencies are required by statute to implement a rule 
prohibiting drivers of regulated motor vehicles from entering a 
highway-rail grade crossing unless there is sufficient space to clear 
the crossing completely without stopping. The data available to FMCSA 
indicate that those 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 crash rate

[[Page 58921]]

differences, the Agencies believe the differential is large enough to 
suggest that such rules have safety benefits. The number of States 
which have voluntarily adopted storage-space rules also suggests that 
the costs of implementing the requirements have not proven to be an 
issue with the motor carrier industry. Based on the safety impacts seen 
in the States that have adopted requirements similar to those addressed 
in this rulemaking, FMCSA and PHMSA believe the rule will provide a 
cost-beneficial enhancement to safety.
    In the cost and benefit discussions that follow, the Agencies 
consider the costs and benefits applicable to the total population of 
carriers affected by this rule. Because the final rule does not mandate 
specific changes in carrier operations, driver training, or grade 
crossing infrastructure enhancements and no specific comments were 
received providing any data to change the Agencies' analyses, FMCSA and 
PHMSA conclude that the cost impacts will not be significant. Because a 
substantial number of States already have in place storage-space rules, 
drivers of regulated motor vehicles operating in or through those 
States should have the experience and knowledge needed to ensure 
compliance. FMCSA and PHMSA do not believe the rule will require 
special training of drivers operating in the other States. The Agencies 
requested public comment on this issue, but received none.
    For regulated vehicles, the storage-distance related annual crash 
rate per 1,000 grade crossings is 0.72 based on data from 1998-
2005.\11\ FMCSA and PHMSA found that the difference in this rate 
between States that have laws/regulations similar to the Federal rule 
adopted today and those that do not is 0.285 crashes per 1,000 grade 
crossings per year. Thus, FMCSA and PHMSA expect 2.62 fewer crashes per 
year, when all States adopt this Federal rule,\12\ and 0.3 fewer train 
derailments.\13\
---------------------------------------------------------------------------

    \11\ 122 crashes/8 years/21,208 grade crossings with limited 
storage space x 1,000 = 0.72.
    \12\ 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.
    \13\ 14 derailments/122 grade crossing incidents x 2.62 
incidents prevented equals 0.3 fewer train derailments.
---------------------------------------------------------------------------

    FMCSA and PHMSA estimate the total annual benefits from crashes 
avoided to be approximately $946,000. This consists of $473,000 in 
reduced injuries, $1,800 in reduced hazardous material spills, $33,000 
in reduced highway property damage, and $438,000 in reduced costs for 
train derailments. Total implementation costs per year are estimated to 
be $302,000 in the first year, based on the added costs to State 
enforcement agencies of administrative, enforcement, or training 
activities. The additional costs for driver training should be small as 
the training would occur as a modification of emphasis in existing 
railroad grade crossing training curricula. Railroad grade crossing 
training curricula for drivers would include training to comply with 
eight FMCSRs related to the safe operation of regulated motor vehicles 
at railroad grade crossings and penalties for non-compliance with these 
railroad grade crossing safe operation rules. In addition, drivers who 
operate in States with existing laws similar to the regulations in this 
final rule will be familiar with the requirements. Thus, costs are 
projected to be about $11,200 in each of the 27 states (including the 
District of Columbia) that do not have an existing law or regulation 
similar to the requirements in the final rule. Thus, the annual net 
benefits from implementation of this final rule in the first year 
should be about $644,000. In subsequent years, there would be $946,000 
in annual savings.
    Table 1 displays the 10-year average annual and discounted net 
costs and benefits of the statute that we are implementing in this 
final rule.\14\
---------------------------------------------------------------------------

    \14\ Note that the numbers for the 10-year costs and the 
discount rates differ from what was presented in the NPRM's RIA due 
to a discovery of a minor mathematical error, the updating to 
current year costs with the new estimated average economic value of 
a statistical life for injury crashes (VSL), and the removal of 
annual fatality benefits, because zero fatal crashes were found in 
the analysis period of 1998-2005. The estimated mean VSL is derived 
from the DOT memorandum, ``Treatment of the Economic Value of a 
Statistical Life in Departmental Analyses,'' February 28, 2013. See 
http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance%202013.pdf.

   Table 1--Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Final Grade
                                           Crossing Storage-Space Rule
                                      [2013 dollars, in thousands, rounded]
----------------------------------------------------------------------------------------------------------------
                                                                                      10-Year         10-Year
                                    First year     Annual impact   10-Year total  (discounted at  (discounted at
                                      impact       (years 2-10)                    3 percent) *    7 percent) *
----------------------------------------------------------------------------------------------------------------
Benefits........................            $946            $946          $9,460          $8,312          $7,109
Costs...........................             302               0             302             265             227
                                 -------------------------------------------------------------------------------
    Net Benefits................             644             946           9,158           8,047           6,882
----------------------------------------------------------------------------------------------------------------
* Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4,
  Regulatory Analysis, September 2004. Note that the first year costs and benefits are not discounted.

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 regulatory 
action on small entities and determined that this final rule will 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 drivers of 
regulated motor vehicles). However, the final rule does not mandate 
specific changes in carrier operations or driver training. Rerouting 
(as estimated by the sensitivity analysis in the NPRM) and other 
logistics costs that might be borne by small carriers are expected to 
be minimal in comparison to overall operating costs and would be 
incorporated into the carrier's cost of business to the extent that the 
carrier found the delivery profitable.
    Additionally, there will probably be only minimal additional costs 
for driver training as the training will probably

[[Page 58922]]

occur as a modification of emphasis in existing training curricula and 
will not likely add extra time to the training requirement. The 
widespread use of communications and mapping systems, electronic and 
physical, as well as FRA's Rail Crossing Locator mobile app, also work 
well to inform drivers of routing issues and provide assistance with 
complying with this final rule.
    We estimate that a preponderance of this rule's implementation 
costs--expected to be a one-time cost composed of government 
administrative, enforcement, or training activities--will affect 
transportation personnel in the 27 States, including the District of 
Columbia, that do not have an existing law or regulation similar to the 
Federal rule.
    Accordingly, the Administrators of FMCSA and PHMSA hereby certify 
that this final rule will not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531, et seq.) requires Agencies to evaluate whether an Agency action 
would result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $143.1 
million or more ($100 million, as adjusted for inflation) in any 1 
year, and if so, to take steps to minimize these unfunded mandates. 
This rulemaking would result in private sector expenditures less than 
the $143.1 million threshold. The analysis shows a positive net 
benefit, with normal costs to industry falling far below the $143.1 
million threshold.
    The Nebraska Department of Roads commented that the Agencies' rule 
is an unfunded mandate, unless language is included to allow for 
situations where there is no reasonable alternate route available. This 
is speculative, as the Nebraska Department of Roads did not provide any 
specific examples of this occurring within its road network. It is also 
worth mentioning that the rule does not require States to take any 
specific action, further reducing the claim of an unfunded mandate.
    PHMSA and FMCSA, therefore, believe that this rule would not impose 
an unfunded Federal mandate.

Executive Order 12988 (Civil Justice Reform)

    This action meets 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 (Takings of Private Property)

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

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria in Executive Order 13132. FMCSA and PHMSA have determined that 
this rulemaking does not have federalism implications in that it does 
not have a substantial direct effect on States, on the relationship 
between the National government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
This rulemaking is required by Federal law addressing a matter of 
national concern. State statutory provisions were reviewed and the 
Agencies are not aware of any State law that would be preempted by this 
rulemaking. Furthermore, States have been involved actively throughout 
the history of the rulemaking process. For example, State officials 
were consulted on anticipated enforcement efforts impacted by this 
rule.

Executive Order 12372 (Intergovernmental Review)

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

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 there are no current or new information collection 
requirements associated with this final rule.

National Environmental Policy Act and Clean Air Act

    The Agencies analyzed this final 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 this final rule should result in a 
decrease in highway and rail vehicle emissions as a result of fewer 
crashes. We expect moderately positive impacts to public safety, 
specifically at grade crossings, based on a decrease in the likelihood 
of fatalities and injuries as a result of crashes due to insufficient 
storage distance at grade crossings. There are no identified overall 
negative environmental or socioeconomic impacts associated with the 
final rule.
    The beneficial impacts of the final 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 improved public 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 also analyzed this action under section 176(c) of 
the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and 
implementing regulations promulgated by the U.S. Environmental 
Protection Agency. FMCSA and PHMSA recognize that the action taken in 
this rulemaking could affect emissions of criteria pollutants from 
regulated motor vehicles. The air emissions analysis is discussed in 
the Environmental Assessment (EA) for this rule. In determining whether 
this action conforms to CAA requirements in areas designated as 
nonattainment under section 107 of the CAA and maintenance areas 
established under section 175A of the CAA, FMCSA and PHMSA are required 
(among other criteria) to determine if the total direct and indirect 
emissions are below or above de minimis levels. In the case of the 
alternatives proposed in this Final Rule, FMCSA and PHMSA consider the 
change in emissions to be an indirect result of the rulemaking action. 
FMCSA and PHMSA are requiring drivers and motor carriers to avoid 
railroad-grade crossings where not enough space exists to traverse the 
crossing completely, which, directly, does not result in additional 
emissions releases. Although emissions from additional VMT as a result 
of re-routing are foreseeable, under the definition of `indirect 
emissions' in 40 CFR 93.152, FMCSA and PHMSA lack the ability to 
control emissions and do not have continuing program responsibility, 
two of the four criteria that must be met. Therefore, this action is 
exempt from the CAA's general conformity requirement because it would 
not affect the amount of direct or indirect emissions.\15\ Moreover, 
based

[[Page 58923]]

on FMCSA's and PHMSA's analysis, it is reasonably foreseeable that the 
action would not significantly increase total regulated motor vehicle 
mileage, nor would it change how these vehicles operate, or the vehicle 
fleet mix of motor carriers.
---------------------------------------------------------------------------

    \15\ See EPA's April 5, 2010 final rule ``Revisions to the 
General Conformity Regulations.'' Also included are EPA's detailed 
discussion and clarification of its definitions of direct and 
indirect emissions at 75 FR 17254, 17260.
---------------------------------------------------------------------------

    FMCSA and PHMSA conclude that the rule changes would have a 
negligible impact on the quality of several environmental components 
described in the EA and therefore would not require an Environmental 
Impact Statement. Subsequently, FMCSA and PHMSA are issuing a Finding 
of No Significant Impact with regard to potential environmental impact 
of this action.
    A copy of the joint FMCSA and PHMSA Final Environmental Assessment 
(Final EA) is included in both dockets, FMCSA-2006-25660 and PHMSA-
2010-0319 (HM-255). FMCSA and PHMSA sought public comment on its draft 
environmental assessment and received no comments about it.

Executive Order 12898 (Environmental Justice)

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

Executive Order 13045 (Protection of Children)

    FMCSA and PHMSA analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The Agencies have determined this rule does not create an 
environmental risk to health or safety that may disproportionately 
affect children. None of the alternatives analyzed in the Agencies' EA, 
discussed under NEPA, result in environmental risk to health or safety 
disproportionately affecting children.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    FMCSA and PHMSA analyzed this rulemaking in accordance with the 
principles and criteria in Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments. This rulemaking is 
required by law and does not significantly or uniquely affect the 
communities of the Indian tribal governments or impose substantial 
direct compliance costs on tribal governments. Thus, the funding and 
consultation requirements of E.O. 13175 do not apply and no tribal 
summary impact statement is required.

Executive Order 13211 (Energy Effects)

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

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
1. The authority citation for part 177 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5127; sec. 112 of Pub. L. 103-311, 
108 Stat. 1673, 1676 (1994); sec. 32509 of Pub. L. 112-141, 126 
Stat. 405, 805 (2012); 49 CFR 1.97.

0
2. Section 177.804 is revised to read as follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

    (a) General. Motor carriers and other persons subject to this part 
must comply with 49 CFR part 383 and 49 CFR parts 390 through 397 
(excluding Sec. Sec.  397.3 and 397.9) to the extent those regulations 
apply.
    (b) Additional prohibitions. A person transporting a quantity of 
hazardous materials requiring placarding under 49 CFR part 172 or any 
quantity of a material listed as a select agent or toxin in 42 CFR part 
73:
    (1) Must comply with the safe clearance requirements for highway-
rail grade crossings in Sec.  392.12 of this title;
    (2) May not engage in, allow, or require texting while driving, in 
accordance with Sec.  392.80 of this title; and
    (3) May not engage in, allow, or require the use of a hand-held 
mobile telephone while driving, in accordance with Sec.  392.82 of this 
title.

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

0
3. The authority citation for part 392 is revised to read as follows:

    Authority:  49 U.S.C. 504, 13902, 31136, 31151, 31502; Section 
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by 
sec. 32509 of Pub. L. 112-141, 126 Stat. 405, 805 (2012); and 49 CFR 
1.87.

0
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 August 21, 2013 under authority 
delegated in 49 CFR 1.97 (PHMSA) and 1.87 (FMCSA).

    By the Pipeline and Hazardous Materials Safety Administration.
Cynthia L. Quarterman,
Administrator.

    By the Federal Motor Carrier Safety Administration.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-23375 Filed 9-24-13; 8:45 am]
BILLING CODE 4910-EX-P