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Hazardous Materials Transportation; Registration and Fee Assessment Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 15, 2006 (Volume 71, Number 157)]
[Proposed Rules]
[Page 46884-46887]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au06-13]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 107
[Docket No. PHMSA-2006-25589 (HM-208F)]
RIN 2137-AE11
Hazardous Materials Transportation; Registration and Fee
Assessment Program
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: This rule proposes to amend the statutorily mandated
registration and fee assessment program for persons who transport or
offer for transportation certain categories and quantities of hazardous
materials. For those registrants not qualifying as a small business or
not-for-profit organization, we are proposing to increase the fee to
$1,975 (plus a $25 administrative fee) for registration year 2007-2008
and increase the fee to $2,975 (plus a $25 administrative fee) for
registration year 2008-2009 and following years. The fee increase is
necessary to fund the national Hazardous Materials Emergency
Preparedness (HMEP) grants program at approximately $28,000,000 in
accordance with the Administration's Fiscal Year 2007 budget proposal
to Congress. PHMSA is also proposing to eliminate the expedited
telephonic registration option. The number of telephonic registrations
has steadily decreased with the addition of the internet registration
option, therefore, we believe that this registration option is no
longer necessary.
DATES: Submit comments by October 16, 2006.
ADDRESSES: You may submit comments identified by any of the following
methods:
--Federal eRulemaking Portal: http://www.regulations.gov. Follow
the online instructions for submitting comments.
--Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
--Fax: 1-202-493-2251.
--Mail: Docket Management System: U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
--Hand Delivery: To the Docket Management System; Room PL-401 on
the Plaza Level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal Holidays.
Instructions: You must include the agency name (Pipeline and
Hazardous Materials Safety Administration) and docket number (PHMSA-xx-
xxxx (HM-208F)) or the Regulatory Identification Number (RIN) for this
notice at the beginning of your comment. You should submit two copies
of your comments if you submit them by mail. If you wish to receive
confirmation we received your comments, you should include a self-
addressed stamped postcard. Note that all comments received will be
posted without change to http://dms.dot.gov including any personal
information provided. Please see the Privacy Act section of this document.
Docket: You may view the public docket through the Internet at
http://dms.dot.gov or in person at the Docket Management System office
at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of
Hazardous Materials Planning and Analysis, PHMSA, (202) 366-4484, or
Ms. Deborah Boothe, Office of Hazardous Materials Standards, PHMSA,
(202) 366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
Since 1992, the Pipeline and Hazardous Materials Safety
Administration (PHMSA) has conducted a national registration program
under the mandate in 49 U.S.C. 5108 for persons who offer for
transportation or transport certain hazardous materials in intrastate,
interstate, or foreign commerce. The purposes of the registration
program are to gather information about the transportation of hazardous
materials, and fund the Hazardous Materials and Emergency Preparedness
(HMEP) grants program. The HMEP grants program supports hazardous
materials emergency response planning and training activities by
States, local governments, and Indian tribes. See 49 U.S.C. 5108(b),
5116. PHMSA has discretion to require additional persons to register,
beyond those offerors and transporters of the categories and quantities
of hazardous materials listed in 49 U.S.C. 5108(a)(1), and to set the
annual registration fee between the statutorily mandated minimum and
maximum amounts. See 49 U.S.C. 5108(a)(2), 5108(g)(2)(A).
To meet Congressionally authorized funding of $14.3 million for the
HMEP grants program, in 2000, we expanded the base of registrants and
adopted a two-tier fee schedule under which the registration fee was
set at $275 for persons qualifying as small businesses under Small
Business Administration (SBA) criteria, and $1,975 for other persons
(plus a $25 processing fee in all cases). (69 FR 7297) Due to a
surplus, in 2003, we temporarily adjusted the registration fee to $125
(plus a $25 processing fee) for small businesses and not-for-profit
organizations and $275 (plus a $25 processing fee) for all other
registrants. (68 FR 1342) In 2006, the fees increased to $250 (plus a
$25 processing fee) for small businesses and not-for-profit organizations
and $975 (plus a $25 processing fee) for all other registrants.
Congress reauthorized the Federal hazardous materials
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) in 2005
through the ``Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005'' (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act--A Legacy for Users
(SAFETEA-LU), P.L. 109-59, 119 Stat. 1144, August 10, 2005). The Act
makes available approximately $28,000,000 for the HMEP grants program
and lowers the maximum registration fee from $5,000 to $3,000.
Consistent with SAFETEA-LU, the Administration's Fiscal Year 2007 budget
proposal to Congress requests $28,000,000 in support of HMEP activity.
II. HMEP Grants Program
A. Purpose and Achievements of the HMEP Grants Program
The HMEP grants program, as mandated by 49 U.S.C. 5116, provides
Federal financial and technical assistance to States and Indian tribes
to ``develop, improve, and carry out emergency plans'' within the
National Response System and the Emergency Planning and Community
Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 et seq. The
grants are used to develop, improve, and implement emergency plans; to
train public sector hazardous materials emergency response employees to
respond to accidents and incidents involving hazardous materials; to
determine flow patterns of hazardous materials within a State and
between States; and to determine the need within a State for regional
hazardous materials emergency response teams.
The HMEP grants program encourages the growth of the hazardous
materials planning and training programs of State, local, and tribal
governments by limiting the Federal funding to 80
[[Page 46885]]
percent of the cost a State or Indian tribe incurs to carry out the
activity for which the grant is made. See 49 U.S.C. 5116(e). HMEP
grants supplement the amount already being provided by the State or
Indian tribe. By accepting an HMEP grant, the State or tribe makes a
commitment to not only maintain its previous level of support, but also
to increase the previous level by an amount representing 20 percent of
the funds expended on grant-supported activities each year. See 49
U.S.C. 5116(a)(2)(A), 5116(b)(2)(A) and 5116(e).
Since 1993, PHMSA has awarded all States and territories and 45
Native American tribes planning and training grants totaling $125
million. These grants helped to:
? Train 1,843,000 hazardous materials responders;
? Conduct 7,545 commodity flow studies;
? Write or update more than 41,344 emergency plans;
? Conduct 9,452 emergency response exercises; and
? Assist 18,907 local emergency planning committees (LEPCs).
Since the beginning of the program, HMEP grantees have used program
funds to support the following related activities in the total amounts
indicated:
? $3.2 million for the development and periodic updating of
a national curriculum used to train public sector emergency response
and preparedness teams. The curriculum guidelines, developed by a
committee of Federal, State, and local experts, include criteria for
establishing training programs for emergency responders at five
progressively more skilled levels: (1) First responder awareness, (2)
first responder operations, (3) hazardous materials technician, (4)
hazardous materials specialist, and (5) on-scene commander.
? $2.5 million to monitor public sector emergency response
planning and training for hazardous materials incidents, and to provide
technical assistance to State or Indian tribe emergency response
training and planning for hazardous materials incidents.
? $6 million for periodic updating and distribution of the
North American Emergency Response Guidebook. This guidebook provides
immediate information on initial response to hazardous materials
incidents, and is distributed free of charge to the response community.
? $2 million for the International Association of Fire
Fighters (IAFF) to train instructors to conduct hazardous materials
response training programs.
B. Increased Funding of the HMEP Grants Program
An estimated 800,000 shipments of hazardous materials make their
way through the national transportation system each day. It is
impossible to predict when and where a hazardous materials incident may
occur or what the nature of the incident may be. This potential threat
requires state and local agencies to develop emergency plans and train
emergency responders on the broadest possible scale.
The HMEP training grants are essential for providing adequate
training of persons throughout the nation who are responsible for
responding to emergencies involving the release of hazardous materials.
There are over 2 million emergency responders requiring initial
training or periodic recertification training, including 250,000 paid
firefighters, 850,000 volunteer firefighters, 725,000 law enforcement
officers, and 500,000 emergency medical services (EMS) providers. Due
to the high turnover rates of emergency response personnel, there is a
continuing need to train a considerable number of recently recruited
responders at the most basic level.
In addition, training at more advanced levels is essential to
ensure emergency response personnel are capable of effectively and
safely responding to serious releases of hazardous materials. The
availability of increased funding for the HMEP grants program will
encourage State, tribal, and local agencies to provide more advanced
training.
The increased funding for HMEP grants will enable PHMSA to help
meet previously unmet needs of State, local and tribal governments by
providing for the following activities authorized by law:
? $21,800,000 for training and planning grants, an increase
of $9 million;
? A new $4,000,000 grant program for non-profit hazmat
employee organizations to train hazmat instructors who will train
hazmat employees;
? $1,000,000 for grants to support certain national
organizations to train instructors to conduct hazardous materials
response training programs, an increase of $750,000;
? $625,000 for revising, publishing, and distributing the
North American Emergency Response Guidebook, an increase of $125,000;
? $200,000 for continuing development of a national training
curriculum; and
? $150,000 for monitoring and technical assistance.
III. Summary of Proposal to Increase HMEP Funding
A registration fee system should: (1) Be simple, straightforward,
and easily implemented and enforced; (2) employ an equity factor
reflecting the differences in level of risk to the public and the
financial impact associated with the business activities of large and
small businesses; and (3) ensure adequate funding for the HMEP grants
program. Under Federal hazmat law, we have the discretion to increase
registration fees for both small and large businesses. We considered
several alternatives for increasing the funds available for the HMEP
grants program. One option was to increase the fee for all businesses
offering for transportation or transporting the covered hazardous
materials. Another option was to maintain the fee for small businesses
and not-for-profit organizations while adjusting the fee for larger
businesses.
Due to a surplus, in 2003, we temporarily adjusted the registration
fee to $125 (plus a $25 processing fee) for small businesses and not-
for-profit organizations and $275 (plus a $25 processing fee) for all
other registrants. (68 FR 1342) This reduction has reduced the current
surplus to approximately $8.5 million.
To achieve the statutorily mandated goal of funding the HMEP grants
program activities at approximately $28,000,000, we are proposing to
adjust registration fees for persons other than small businesses to
$1,975 (plus $25 processing fee) for registration year 2007-2008 and to
$2,975 (plus $25 processing fee) for registration year 2008-2009 and
following.
We believe adjusting the fee solely for larger, for-profit
businesses is the best approach to meet the objectives listed above.
Although there are exceptions, small businesses and not-for-profit
organizations generally offer for transportation or transport fewer and
smaller hazardous materials shipments as compared to larger companies.
Raising the registration fee only for other-than-small businesses
rather than for all businesses correlates the fee structure to the
level of risk associated with shipments offered for transportation and
transported by larger companies. Even at the fee levels proposed for
registration year 2008-2009, the two fee levels will only differ by a
factor of 10.
Moreover, increasing the registration fees only for other-than-
small businesses will affect significantly fewer entities and will
affect entities that can more easily absorb the increase. Since 2000,
PHMSA has received
[[Page 46886]]
approximately 41,500 registrations for each registration year. Small
businesses or not-for-profit organizations make up 84%, or 34,775, of
the registrants, while large businesses make up 16%, or 6,725, of the
registrants.
We are also considering raising the current baseline penalty
assessment of $1,000, for failing to register as an offeror or carrier
of hazardous materials, for other-than-small businesses who fail to
register and pay a registration fee. We would adjust the baseline
penalty assessment to keep it proportional to the increased
registration fee. We request comments on raising this baseline penalty
assessment for other-than-small businesses.
IV. Expedited Registration Process
Since the beginning of the registration program in 1992, we have
provided a 24 hour, seven days-a-week expedited telephonic registration
option. Person utilizing this option are provided a temporary
registration number and must pay an additional $50 expedited processing
fee. With the addition of the internet registration option, the number
of registrants utilizing the expedited registration option has steadily
decreased to a low of less than 100 persons since January 2006.
Therefore, we are proposing to eliminate the expedited registration option.
V. Multi-Year Registrations
We allow a person to register for up to three years in one
registration statement (49 CFR 107.612(c)). We have received
approximately 300 advance registrations for the 2007-2008 registration
year and one advance registration for the 2008-2009 registration year
from other-than-small businesses that have paid the fee previously
established for those years. We apply fees according to the fee
structure ultimately established by regulation for the registration
year rather than according to the fee set at the time of payment. Thus,
if we adopt the increase in registration fees proposed in this NPRM,
additional fees would be required for registrations paid in advance at
the lower levels in effect at the time of payment. When we lowered the
fees for all registrants in 2003, we provided over 7,100 refunds
amounting to over $2.3 million within the first year to registrants who
had overpaid the newly established fees. If we adopt this proposal, we
will notify each registrant who will be required to pay additional fees
for the 2007-2008 and following registration years.
VI. Indian Tribes Exception
The Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005 amends Sec. 5108(i)(2)(b) of the Federal
hazmat law to add Indian tribes to the list of governmental agencies
specifically excepted from the registration requirements. As a matter
of policy, we have not been enforcing the registration requirements
against Indian tribes, which were specifically included among the grant
recipients. We are proposing to incorporate this specific exception
into the HMR.
VII. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This proposed rule is published under the authority of the Federal
hazardous materials transportation law (Federal hazmat law; 49 U.S.C.
5101 et seq., as amended by P.L. 109-59) and 49 U.S.C. 44701. Section
5108 of the Federal hazmat law authorizes the Secretary of
Transportation to establish a registration program to collect fees to
fund HMEP grants. The HMEP grants program, as mandated by 49 U.S.C.
5116, authorizes Federal financial and technical assistance to States
and Indian tribes to ``develop, improve, and carry out emergency
plans'' within the National Response System and the Emergency Planning
and Community Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 et
seq.
Congress reauthorized the Federal hazmat law in 2005 through the
Hazardous Materials Transportation Safety and Security Reauthorization
Act of 2005. This Act makes available funding for the HMEP grants
program at approximately $28,000,000, an increase of nearly $14
million. In addition, the Act lowers the maximum fee to $3,000.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and, therefore, was
not subject to formal review by the Office of Management and Budget.
This proposed rule is considered non-significant under the Regulatory
Policies and Procedures of the Department of Transportation (44 FR 11034).
The cost to industry of increasing registration fees will be $14
million per year. The increased funding for the HMEP grants program
will provide essential training of persons throughout the Nation who
are responsible for responding to emergencies involving the release of
hazardous materials. In addition, training at more advanced levels is
essential to assure emergency response personnel are capable of
effectively and safely responding to serious releases of hazardous
materials. The increased funding for the HMEP grants will enable us to
help meet previously unmet needs of State, local and tribal governments
by providing funding for activities such as: (1) Planning and training
grants for local emergency planning committees; (2) a new program for
non profit hazmat employee organizations to train hazmat instructors
that will train hazmat employees; (3) support to certain national
organizations to train instructors to conduct hazardous materials
response training programs; (4) revising, publishing, and distributing
the North American Emergency Response Guidebook; (5) continuing
development of a national training curriculum; and (6) monitoring and
technical assistance.
While the safety benefits resulting from improved emergency
response programs are difficult to quantify, we believe these benefits
significantly outweigh the annual cost of funding the grants program.
The importance of planning and training cannot be overemphasized. To a
great extent, we are a nation of small towns and rural communities
served by largely volunteer fire departments. In many instances,
communities' response resources already are overextended in their
efforts to meet routine emergency response needs. The planning and
training programs funded by the HMEP grants program enable state and
local emergency responders to respond quickly and appropriately to
hazardous materials transportation accidents, thereby mitigating
potential loss of life and property and environmental damage. The
regulatory evaluation to the final rule issued under Docket HM-208 (57
FR 30620) showed that the benefits to the public and to the industry
from the emergency response grant program would at least equal, and
likely exceed, the annual cost of funding the grant program. Based on
estimates of annual damages and losses resulting from hazardous
materials transportation accidents, the analysis concluded that the
HMEP program would be cost-beneficial if it were only 3% effective in
reducing either the frequency or severity of the consequences of
hazardous materials transportation accidents. Achieving this level of
effectiveness is well within the success rates of training and planning
programs to reduce errors and increase the proficiency and productivity
of response personnel. A
[[Page 46887]]
regulatory evaluation for this proposed rule is available for review in
the public docket.
C. Executive Order 13132
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''). This proposed rule preempts State, local, and Indian
tribe requirements, but does not propose any regulation having
substantial direct effects on the States, the relationship between the
national government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
D. Executive Order 13175
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'').
Because this proposed rule does not have adverse tribal implications
and does not impose direct compliance costs, the funding and
consultation requirements of Executive Order 13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The provisions of this rule apply specifically to businesses
not falling within the small entities category. Therefore, PHMSA
certifies this rule would not have a significant economic impact on a
substantial number of small entities.
F. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$120.7 million or more, in the aggregate, to any of the following:
State, local, or Native American tribal governments, or the private sector.
G. Paperwork Reduction Act
Under 49 U.S.C. 5108(i), the information management requirements of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to
this proposed rule.
H. Regulation Identifier Number (RIN)
A regulation identifier 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 number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. There are no significant environmental impacts associated
with this proposed rule. PHMSA is proposing in this rule changes to the
requirements in the HMR on the registration and fee assessment program
for persons who transport or offer for transportation certain
categories and quantities of hazardous materials. The proposed increase
in registration fees will provide additional funding for the HMEP
program to help mitigate the safety and environmental consequences of
hazardous materials transportation accidents.
J. 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 comments (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
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
List of Subjects in 49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and record keeping requirements.
In consideration of the foregoing, we propose to amend 49 CFR part
107 as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; Sec 212-213, Pub. L. 104-
121, 110 Stat. 857; 49 CFR 1.45, 1.53.
2. In Sec. 107.606, redesignate paragraphs (a)(4), (a)(5), and
(a)(6) as (a)(5), (a)(6), and (a)(7) respectively, and add a new
paragraph (a)(4) to read as follows:
Sec. 107.606 Exceptions.
(a) * * *
(4) An Indian tribe.
* * * * *
3. In Sec. 107.612, revise paragraph (d)(3) to read as follows:
Sec. 107.612 Amount of fee.
* * * * *
(d) * * *
(3) Other than a small business or not-for-profit organization.
Each person that does not meet the criteria specified in paragraph
(d)(1) or (d)(2) of this section must pay an annual registration fee of:
(i) For registration year 2006-2007, $975 and the processing fee
required by paragraph (d)(4) of this section;
(ii) For registration year 2007-2008, $1,975 and the processing fee
required by paragraph (d)(4) of this section;
(iii) For registration year 2008-2009 and following, $2,975 and the
processing fee required by paragraph (d)(4) of this section.
* * * * *
Sec. 107.616 [Amended]
4. In Sec. 107.616, paragraph (a) is amended by, in the first
sentence, eliminating the phrase ``Except as provided in paragraph (d)
of this section,'' and paragraph (d) is removed.
Issued in Washington, DC on August 9, 2006, under authority
delegated in 49 CFR part 106.
Robert McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E6-13312 Filed 8-14-06; 8:45 am]
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