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.
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