[Federal Register Volume 59, Number 63 (Friday, April 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7816]


[[Page Unknown]]

[Federal Register: April 1, 1994]


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Part V





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 107 and 171




Hazardous Materials Transportation Registration and Fee Assessment 
Program; Proposed Rule
DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 107 and 171

[Docket No. HM-208A, Notice No. 94-4]
RIN 2137-AC50

 
Hazardous Materials Transportation Registration and Fee 
Assessment Program

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: In July 1992, RSPA published a final rule establishing a 
national registration and fee assessment program for persons offering 
for transportation or transporting certain categories and quantities of 
hazardous materials in intrastate, interstate, and foreign commerce. 
The fees collected under the registration program are to fund a grant 
program to enhance State, Indian tribal, and local hazardous materials 
emergency preparedness and response activities. This notice proposes 
certain changes to the current registration program which, if adopted, 
will become effective July 1, 1994, the beginning of the next 
registration year. The proposed changes would delay the requirement for 
foreign offerors to register and would specify that each person who 
offers for transportation or transports a hazardous material for which 
registration is required may offer or transport that material only if 
both the offeror and transporter are currently registered with RSPA. 
The intended effect of the latter proposed change is to enhance 
nationwide compliance with the registration requirements.

DATES: Comments. Comments must be received by May 2, 1994.

ADDRESSES: Comments. Address comments to Dockets Unit (DHM-30), 
Hazardous Materials Safety, RSPA, U.S. Department of Transportation, 
Washington, DC 20590-0001. Comments should identify the docket and 
notice number and be submitted, when possible, in five copies. Persons 
wishing to receive confirmation of receipt of their comments should 
include a self-addressed, stamped postcard. The comment period is less 
than 60 days in order to ensure publication of a final rule before the 
July 1, 1994 start of the 1994-1995 registration year. The Dockets Unit 
is located in Room 8421 of the Nassif Building, 400 Seventh Street 
S.W., Washington, DC 20590-0001. Office hours are 8:30 am to 5:00 pm 
Monday through Friday, except on public holidays when the office is 
closed.

FOR FURTHER INFORMATION CONTACT: Joseph S. Nalevanko, Office of 
Hazardous Materials Planning and Analysis, (202) 366-4484, or Beth 
Romo, Office of Hazardous Materials Standards, (202) 366-4488, RSPA, 
Department of Transportation, 400 Seventh Street S.W., Washington, DC 
20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 9, 1992, RSPA published a final rule under Docket HM-208 
[57 FR 30620], establishing a national registration program, as 
mandated by Congress in the 1990 amendments to the Hazardous Materials 
Transportation Act (HMTA), 49 App. U.S.C. 1801 et seq., for persons 
engaged in the offering for transportation or transportation of certain 
categories and quantities of hazardous materials in intrastate, 
interstate, and foreign commerce. Persons currently subject to the 
registration program are required to annually file a registration 
statement with RSPA and pay an annual fee of $250 to fund a nationwide 
emergency response training and planning grant program for States, 
local governments, and Indian tribes, and a $50 administrative fee to 
offset DOT processing costs. The fee of $250 is the minimum amount 
permitted to be collected for purposes of funding the emergency 
response preparedness and planning grant program.
    Under the authority of the HMTA, RSPA has developed and implemented 
a reimbursable emergency preparedness grant program. The regulations 
establishing this program were issued in a final rule entitled ``Public 
Sector Training and Planning Grants'' under Docket HM-209 on September 
17, 1992 [57 FR 43062]. The purpose of the grant program is to provide 
funds, technical assistance, and support to States, Indian tribes, and 
political subdivisions to develop, implement, and improve planning and 
training programs for emergency responders in the public sector. RSPA 
utilizes a monitoring system to evaluate each training and planning 
program and ensure that funds are used in accordance with approved 
plans. The information obtained from effective monitoring is used to 
assist grantees in strengthening all planning and training to meet 
applicable Federal requirements.
    As of January 1994, RSPA has awarded emergency preparedness grants 
to 47 States, the District of Columbia, three Territories, and seven 
Indian tribes. The funding for the grant program comes from the fees 
received from RSPA's registration program. Approximately 26,000 persons 
have registered with RSPA for the current registration year, 
substantially fewer in number than originally anticipated. RSPA is 
concerned that many persons who are required to register have not. 
Therefore, RSPA is proposing two compliance-related requirements in the 
NPRM to enhance nationwide compliance.
    RSPA has implemented an extensive outreach effort to increase 
awareness of the registration requirement. Over 200,000 informational 
brochures have been distributed through direct mailing campaigns and 
during presentations to industry. RSPA's enforcement policy is designed 
to encourage compliance with the registration requirement and includes 
a request that each of the modal administrations establish a uniform 
approach to registration enforcement. DOT's current focus is on 
identifying persons subject to the registration requirement who have 
failed to register. Cases have been completed in most of the Federal 
Highway Administration's nine regions, resulting in civil penalties and 
increased compliance with the registration requirement among shippers 
and highway carriers. The Federal Railroad Administration also has an 
active enforcement program, and has identified and cited persons within 
its jurisdiction for failure to register, resulting in increased 
compliance.
    Persons who are required to be registered but negligently fail to 
do so are subject to civil penalties of between $250 and $25,000 for 
each day they are in violation (49 App. U.S.C. 1809(a)). Persons who 
are required to be registered but willfully fail to do so are subject 
to five years' imprisonment and criminal fines of up to $250,000 for 
individuals and up to $500,000 for corporations (49 App. U.S.C. 
1809(b)). These penalties are in addition to the requirement to pay the 
registration fee for each year the person has failed to register. RSPA, 
the Federal Aviation Administration, the Federal Highway 
Administration, the Federal Railroad Administration, and the U.S. Coast 
Guard are delegated authority to enforce the registration requirements 
and apply these penalty provisions. In addition, several States have 
adopted the registration requirements as State law or regulation and, 
therefore, also have authority to impose penalties for violations. 
Suspected violations of the registration requirements should be brought 
to the attention of Federal or State enforcement agencies and 
specifically may be brought to RSPA's attention by calling RSPA's 
Registration Program Office at 202-366-4484.

Scope of the Current Registration Program

    The current registration program is focused on persons who, under 
the HMTA, are under a statutory obligation to register with RSPA. Under 
49 App. U.S.C. 1802 and 1805, each person who carries out one or more 
of the following activities must file a registration statement with 
RSPA and pay an annual registration fee:
    (1) Transports or causes to be transported or shipped in commerce 
highway-route controlled quantities of radioactive materials;
    (2) Transports or causes to be transported or shipped in commerce 
more than 25 kilograms (55 pounds) of Division 1.1, 1.2, or 1.3 (Class 
A or Class B explosives) materials in a motor vehicle, rail car, or 
transport container;
    (3) Transports or causes to be transported or shipped in commerce 
more than one liter (1.06 quarts) per package of a hazardous material 
which has been designated by RSPA as extremely toxic by inhalation;
    (4) Transports or causes to be transported or shipped in commerce a 
hazardous material in a bulk package, container, or tank if the 
package, container, or tank has a capacity equal to or greater than 
13,248 liters (3,500 gallons) or more than 13.24 cubic meters (468 
cubic feet); or
    (5) Transports or causes to be transported or shipped in commerce a 
shipment in other than a bulk packaging of 2,268 kilograms (5,000 
pounds) or more of a class of hazardous materials for which placarding 
of a vehicle, rail car, or freight container is required.
    RSPA has no authority to except from the registration requirements 
any person engaged in any of the foregoing activities.

Fee Schedule Under the Current Program

    Under section 117A(h)(3) of the HMTA, and for purposes of funding 
the grant program, the amount of the annual fee which may be collected 
from a person required to register with RSPA may not be less than $250 
nor more than $5,000. The current fee is a flat $300 for all persons 
required to be registered with RSPA. This basic registration fee 
represents a combination of the minimum $250 registration fee permitted 
under the HMTA plus a processing fee of $50. All registrants, 
regardless of the size of their companies, their levels of income, or 
the extent to which they engage in hazardous materials transportation 
activities, currently pay the same registration fee.

Clarification of Registration Requirements for Owner-Operators

    Owner-operators of motor vehicles who are not under a 30-day or 
longer lease to another company and engage in any of the activities 
subject to the registration program must register with RSPA, pay an 
annual registration fee and carry proof of registration on board their 
vehicles. However, owner-operators of motor vehicles who are under a 
30-day or longer lease to another company and engage in any of the 
activities subject to the registration program are not required to be 
registered with RSPA on their own behalf as a separate entity. Under 
current Sec. 107.606(e), the latter owner-operators are ``hazmat 
employees'' of the company to whom they are under lease. Any company 
with whom the owner-operator is under lease must be registered with 
RSPA and pay the annual registration fee. That company must also ensure 
that proof of registration is carried on all vehicles under its 
operational control when used in any of the activities subject to the 
registration program. (See Sec. 107.620(b).)

II. Proposal

Transporter and Offeror Responsibilities

    During the almost two years of registration operational experience, 
RSPA has received numerous inquiries from offerors and transporters 
subject to the registration program on the extent to which transporters 
accepting hazardous materials offered for transportation are required 
to determine whether a person offering such materials is registered 
with RSPA and, similarly, the extent to which offerors are required to 
determine whether their transporters are registered with RSPA. Although 
the current registration program does not contain such a requirement, 
RSPA is aware that many offerors and transporters do make such 
determinations. RSPA believes that this practice will help to ensure 
that all persons required to register and pay the fee are properly 
fulfilling this responsibility.
    In view of these considerations, RSPA is proposing that each person 
who offers or transports a hazardous material for which registration is 
required may do so only if both the transporter and the offeror (if 
required) are registered. They would be required, on an annual basis, 
to obtain each other's registration number or a copy of each other's 
current Certificate of Registration. On the basis of comments on this 
proposal, RSPA may modify or expand this proposed requirement (e.g., by 
allowing certain alternate means of obtaining or providing proof of 
registration). Comments are solicited on this proposal and possible 
refinements of it.

Foreign Offerors

    Under the HMTA, foreign offerors are defined as ``persons'' who are 
subject to the registration program to the extent that they engage in 
any of the activities covered by the registration program. However, 
because of the potential for reciprocal actions by other governments, 
and significant problems associated with informing and identifying the 
parties concerned, RSPA has delayed the application of the registration 
program to these entities until July 1, 1994. Both Houses of Congress 
are considering legislation which would grant DOT the discretionary 
authority to waive the registration or fee requirement for any person 
domiciled outside the United States, if that person's country does not 
impose registration or fee requirements on U.S. persons offering 
hazardous materials to that country (see, for example, H.R. 2178 which 
passed on November 21, 1993). Pending the outcome of these legislative 
initiatives, RSPA proposes to further extend the delay in application 
of the registration program to foreign offerors until July 1, 1996.

Merchant Vessel Carriers

    Under Sec. 107.601 of the current registration program, any foreign 
motor, rail, or airline carrier, or merchant vessel carrier 
transporting any of the specified hazardous materials subject to the 
registration program in or on U.S. territory, airspace or territorial 
seas is subject to the registration program and must register with RSPA 
before entering the United States with any of those hazardous 
materials. All registrants are required to maintain their Certificates 
of Registration at their principal places of business. Motor carriers, 
however, are also required to carry a document displaying their current 
registration number on board each vehicle used to transport hazardous 
materials that require registration. This requirement is to facilitate 
enforcement of, and compliance with, the registration requirements.
    RSPA has determined that there is a need to further enhance the 
enforcement of the registration program, as it applies to foreign or 
domestic merchant vessel carriers. Accordingly, RSPA is proposing to 
require that each merchant vessel carrier carry a copy of its current 
Certificate of Registration issued by RSPA or another document bearing 
the registration number identified as the ``U.S. DOT Hazmat Reg. No.'' 
on board each merchant vessel carrying a hazardous material subject to 
the registration requirements.

III. Summary of Regulatory Changes by Section

Part 107
    Section 107.601  Paragraph (e) would be revised to clarify the term 
``shipment'' as it pertains to the scope of the registration program.
    Section 107.606  This section provides exceptions from the 
registration requirements. In paragraph (f), foreign offerors, 
including foreign subsidiaries of U.S. corporations, would be excepted 
from all registration requirements until July 1, 1996, an additional 
delay of two years.
    Section 107.608  Paragraph (a) would be amended to remove outdated 
provisions referring to the first registration year's compliance dates.
    Section 107.620  Paragraph (c) would be redesignated as paragraph 
(d). A new paragraph (c) would be added to require a merchant vessel 
carrier to maintain the Certificate of Registration on board each 
vessel carrying hazardous materials subject to the registration 
requirements or to annotate its registration number on any document 
readily available to enforcement personnel.
Part 171
    Section 171.2  A new paragraph (h) would be added to specify that 
each person who offers for transportation or transports a hazardous 
material for which registration is required may offer or transport that 
material only if both the offeror and transporter are currently 
registered with RSPA (if required) and the parties exchange 
registration numbers or a copy of each other's current Certificate of 
Registration.

IV. Rulemaking Analyses and Notices

A. 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 reviewed by the Office of Management and Budget. The rule is not 
considered a significant rule under the Regulatory Policies and 
Procedures of the Department of Transportation [44 FR 11034]. A 
preliminary regulatory evaluation is available for review in the 
Docket.

B. Executive Order 12612

    This action has been analyzed in accordance with Executive Order 
12612 (``Federalism''). States and local governments may be ``persons'' 
under the HMTA, but are specifically exempted from the requirement to 
file a registration statement. The regulations herein have no 
substantial effects on the States, on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various levels of government. This 
registration regulation has no preemptive effect. It does not impair 
the ability of States, local governments or Indian tribes to impose 
their own fees or registration or permit requirements on intrastate, 
interstate or foreign offerors or carriers of hazardous materials. 
Thus, preparation of a federalism assessment is not warranted.

C. Regulatory Flexibility Act

    This proposed rule maintains the minimum fee requirement for small 
shippers and carriers of hazardous materials who are subject to the 
registration requirement. Therefore, I certify that this proposal will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities. This certification is subject to 
modification as a result of a review of comments received in response 
to this proposal.

D. Paperwork Reduction Act

    Under 49 App. U.S.C. 1805, the information management requirements 
of the Paperwork Reduction Act [44 U.S.C. 3501 et seq.) do not apply to 
this proposed rule.

E. 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 can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, 49 CFR parts 107 and 171 would 
be amended as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

    1. The authority citation for part 107 would continue to read as 
follows:

    Authority: 49 App. U.S.C. 1421(c), 1653(d), 1655, 1802, 1804, 
1805, 1806, 1808-1811, 1815; 49 CFR 1.45 and 1.53 and App. A of 49 
CFR part 1.

    2. In Sec. 107.601, the last sentence in paragraph (e) would be 
revised to read as follows:


Sec. 107.601  Applicability.

* * * * *
    (e) * * * For applicability of this subpart, the term ``shipment'' 
means the offering or loading of a hazardous material at one loading 
facility using one transport vehicle, or the transport of that 
transport vehicle.


Sec. 107.606  [Amended]

    3. In Sec. 107.606, in paragraph (f), at the beginning of the first 
sentence, the wording ``Until July 1, 1994,'' would be revised to read 
``Until July 1, 1996,''.
    4. In Sec. 107.608, paragraph (a) would be revised to read as 
follows:


Sec. 107.608  General registration requirements.

    (a) Except as provided in Sec. 107.616(d), each person subject to 
this subpart must submit a complete and accurate registration statement 
on DOT Form F 5800.2 not later than June 30 for each registration year, 
or in time to comply with paragraph (b) of this section, whichever is 
later.
* * * * *
    5. Section 107.620 would be amended by redesignating paragraph (c) 
as paragraph (d) and adding a new paragraph (c) to read as follows:


Sec. 107.620  Recordkeeping requirements.

* * * * *
    (c) In addition to the requirements of paragraph (a) of this 
section, each person who transports by vessel a hazardous material 
subject to the requirements of this subpart must carry on board the 
vessel a copy of its current Certificate of Registration or another 
document bearing the current registration number identified as the 
``U.S. DOT Hazmat Reg. No.''.
* * * * *

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    6. The authority citation for part 171 would continue to read as 
follows:

    Authority: 49 App. U.S.C. 1802, 1803, 1804, 1805, 1808, and 
1818; 49 CFR part 1.

    7. In Sec. 171.2, a new paragraph (h) would be added to read as 
follows:


Sec. 171.2  General requirements.

* * * * *
    (h) No person subject to the requirements of subpart G of part 107 
of this chapter may offer for transportation a hazardous material 
subject to the requirements of subpart G of part 107 of this chapter to 
a transporter unless the transporter provides the offeror with the 
transporter's current registration number or a copy of the 
transporter's current Certificate of Registration. A transporter may 
not accept for transportation a hazardous material subject to the 
requirements of subpart G of part 107 of this chapter unless the 
offeror (if subject to the requirements of subpart G of part 107 of 
this chapter) provides the transporter with the offeror's current 
registration number or a copy of the offeror's current Certificate of 
Registration.

    Issued in Washington, DC, on March 29, 1994, under the authority 
delegated in 49 CFR part 106, appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-7816 Filed 3-31-94; 8:45 am]
BILLING CODE 4910-60-P