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CMV Failing to Stop at a Railroad Crossing

One common reason for a citation related to commercial vehicle enforcement is a violation of Section 316.302(1) which provides that all drivers of commercial motor vehicles engaged in intrastate commerce are subject to rules and regulations contained in 49 C.F.R. parts 382, 383, 385 and 309 – 390.5 as it relates to the definition of a bus.

Under 49 C.F.R. section 392.10(a)(4), every cargo tank motor vehicle, whether loaded or employ, used for the transportation of any hazardous material is required to stop within 50 feet and not closer than 15 feet of railroad tracks or crossing. A violation can result in being assessed a civil penalty of $250 for a violation of 49 C.F.R. section 392(10)(a)(4).

The officer that issues the commercial motor vehicle citation or permit is trained to tell the driver that the civil penalty must be paid within 20 days and about the protest procedures.

The Guidance from the Federal Motor Carrier Safety Administration (FMCSA) for § 392.10: Railroad grade crossings statute provides that §392.10(a)(4) is NOT applicable to drivers operating cargo tank vehicles that were used to transport hazardous materials for which placarding or marking was required, but are no longer required because the cargo tank has been emptied, or the quantity of the material has been reduced, or the temperature or characteristics of the material have changed

If the cargo tank vehicle no longer displays placards or markings indicating that the vehicle is transporting hazardous materials for which placarding or marking is required, and either:

  1. the vehicle has been sufficiently cleaned of residue and purged of vapors; or
  2. the vehicle is refilled with a material which is not a hazardous material; or
  3. the original material no longer is an elevated temperature material or otherwise is no longer considered hazardous according to the regulations.

Although §392.10(a)(4) does not distinguish between loaded and empty cargo tank vehicles, or cargo tank vehicles transporting materials or substances that are not, at the time the vehicle is being driven across the railroad grade crossing, required to be placarded or marked, the Federal Motor Carrier Safety Administration intends that the scope of the regulation be limited to those cases in which the vehicle is placarded or marked.

The officer can also conduct a North American Standard (NAS) Level I Inspection pursuant to 316.302(9) which provides:

For the purpose of enforcing this section, any law enforcement officer of the Department of Highway Safety and Motor Vehicles or duly appointed agent who holds a current safety inspector certification from the Commercial Vehicle Safety Alliance may require the driver of any commercial vehicle operated on the highways of this state to stop and submit to an inspection of the vehicle or the driver’s records.

If the vehicle or driver is found to be operating in an unsafe condition, or if any required part or equipment is not present or is not in proper repair or adjustment, and the continued operation would present an unduly hazardous operating condition, the officer may require the vehicle or the driver to be removed from service pursuant to the North American Standard Out-of-Service Criteria, until corrected.

However, if continuous operation would not present an unduly hazardous operating condition, the officer may give written notice requiring correction of the condition within 14 days.

(a) Any member of the Florida Highway Patrol or any law enforcement officer employed by a sheriff’s office or municipal police department authorized to enforce the traffic laws of this state pursuant to s. 316.640 who has reason to believe that a vehicle or driver is operating in an unsafe condition may, as provided in subsection (11), enforce the provisions of this section.

(b) Any person who fails to comply with an officer’s request to submit to an inspection under this subsection commits a violation of s. 843.02 if the person resists the officer without violence or a violation of s. 843.01 if the person resists the officer with violence.

If you were served with a commercial motor vehicle citation for failing to stop at a railroad station as a CDL, then contact an attorney at Sammis Law Firm. We represent CDL holders in hearings to contest CMV citations before Florida’s Commercial Motor Vehicle Review Board.

We can also help CDL holders and their employers appeal adverse rulings to the District Court of Appeals.

Call 813-250-0500 to discuss your case.

This article was last updated on Wednesday, July 1, 2020.

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