[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Proposed Rules]
[Pages 5822-5828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2281]




[[Page 5821]]

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Part VIII





Department of Transportation





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Research and Special Programs Administration



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49 CFR Part 107



Hazardous Materials Transportation Registration and Fee Assessment 
Program; Proposed Rule

  Federal Register / Vol. 60, No. 19 / Monday, January 30, 1995 / 
Proposed Rules   
[[Page 5822]] 

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 107

[Docket No. HM-208B, Notice No. 95-3]
RIN 2137-AC58


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: RSPA is proposing changes to the current registration and fee 
assessment program for persons engaged in transporting or offering for 
transportation certain categories and quantities of hazardous materials 
in intrastate, interstate, and foreign commerce under the Hazardous 
Materials Regulations. The proposed changes would increase the annual 
registration fee for a number of persons by distinguishing between 
large, medium, and small entities that conduct operations in one or 
more of the several categories for which registration is required. The 
intended effect of the proposed changes is to provide a sound basis for 
funding the national emergency response training and planning grant 
program.

DATES: Written comments: Comments must be received on or before April 
3, 1995.
    Public hearing: A public hearing will be held beginning at 9:00 
a.m., February 16, 1995. Persons desiring to make oral statements at 
the hearing should notify the Research and Special Programs 
Administration (RSPA) Docket Clerk by telephone (202) 366-5046 or in 
writing by February 13, 1995.

ADDRESSES: Written comments: Address comments to Dockets Unit (DHM-30), 
Hazardous Materials Safety, Research and Special Programs 
Administration, U.S. Department of Transportation, Washington, DC 
20590-0001. Comments should identify the docket (HM-208B) and be 
submitted in five copies. Persons wishing to receive confirmation of 
receipt of their comments should include a self-addressed, stamped 
postcard showing the docket number. The Dockets Unit is located in Room 
8421 of the Nassif Building, 400 Seventh Street SW., Washington, DC 
20590-0001. Public dockets may be viewed between the hours of 8:30 a.m. 
and 5:00 p.m., Monday through Friday, except Federal holidays.
    Public hearing: The public hearing will be held in the Auditorium 
of the Federal Aviation Administration Building located at 800 
Independence Avenue, SW., Washington, DC 20491. Mail written requests 
to speak at the hearing to: Docket Clerk, Room 8421, Office of 
Hazardous Materials Safety, Research and Special Programs 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. For 
further information on public hearing procedures, see Supplementary 
Information.

FOR FURTHER INFORMATION CONTACT: David Donaldson, Office of Hazardous 
Materials Planning and Analysis, (202) 366-4484, or Joan McIntyre, 
Office of Hazardous Materials Standards, (202) 366-8553, RSPA, 
Department of Transportation, 400 Seventh Street SW., Washington, DC 
20590-0001.

SUPPLEMENTARY INFORMATION:

I. Public Hearing Information

    Each request to speak at the public hearing must identify the 
speaker; organization represented, if any; daytime telephone number; 
and the anticipated length of the presentation, not to exceed 10 
minutes. Written text of the oral statement should be presented to the 
hearing officer and reporter prior to the oral presentation. Hearings 
may conclude before 5:00 p.m. if all persons wishing to give oral 
comments have been heard. To confirm plans to attend, contact Ms. Joan 
McIntyre at (202) 366-8553 by February 15, 1995.

II. Background

    On July 9, 1992, RSPA published a final rule under Docket HM-208 
[57 FR 30620], establishing a national registration and fee assessment 
program, as required by 49 U.S.C. 5108, for persons engaged in 
transporting or offering for transportation 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 a total annual fee of $300.00, of which $250.00 is to fund a 
nationwide emergency response training and planning grant program for 
States, local governments, and Indian tribes and $50.00 is to offset 
Department of Transportation (DOT) processing costs. The registration 
fee of $250.00 is the minimum amount permitted under the statute to be 
collected for funding the Interagency Hazardous Materials Public Sector 
Training and Planning Grants Program. RSPA estimates that approximately 
25,000 persons will register for the current (1994-1995) registration 
year, thereby generating $6.25 million. This amount is not sufficient 
to carry out the national emergency response training and planning 
grant program at the level contemplated by Congress.

III. Scope of the Current Registration Program

A. General

    The current registration program is focused on persons who are 
under a statutory obligation to register with RSPA. Under 49 U.S.C. 
5108, 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 Class 7 (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 explosive) material in a motor vehicle, rail car, or 
freight 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 packaging, container, or tank if the 
packaging, 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.
    In addition, RSPA holds authority under Sec. 5108 to require 
registration by each person who offers for transportation or transports 
any form or quantity of a hazardous material in commerce, and each 
person that manufactures, fabricates, marks, maintains, reconditions, 
repairs, or tests packagings that are represented, marked, certified, 
or sold for use in the transportation in commerce of hazardous 
materials. At this time, RSPA is not proposing to expand the 
registration requirement to such persons. [[Page 5823]] 

B. Foreign Offerors

    Foreign offerors are included in the definition of ``persons'' who 
are subject to the registration requirement 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 delayed application of the 
registration requirement to these entities until July 1, 1996. See 49 
CFR 107.606(f). Subsequently, section 104 of Public Law 103-311, 
enacted August 26, 1994, amended 49 U.S.C. 5108(a) by adding a new 
subparagraph that reads as follows:

    (4) The Secretary may waive the filing of a registration 
statement, or the payment of a fee, required under this subsection, 
or both, for any person not domiciled in the United States who 
solely offers hazardous materials for transportation to the United 
States from a place outside the United States if the country of 
which such person is a domiciliary does not require persons 
domiciled in the United States who solely offer hazardous materials 
for transportation to the foreign country from places in the United 
States to file registration statements, or to pay fees, for making 
such an offer.

    In this notice, RSPA proposes to make permanent the exception 
currently provided in Sec. 107.606(f). However, in proposed 
Sec. 107.606(a)(6), the general exception would be limited to persons 
who offer hazardous materials for transportation to the United States 
from a foreign country that does not impose a registration statement or 
fee payment requirement on a person domiciled in the United States who 
offers hazardous materials for transportation to that country.
    In Sec. 107.606(b), RSPA explains that persons domiciled in 
countries that enforce a registration statement or fee payment 
requirement shall file a registration statement and pay the annual fee 
upon a positive determination made by RSPA's Associate Administrator 
for Hazardous Materials Safety, the U.S. Competent Authority, that the 
other country's requirement is prejudicial to persons domiciled in the 
United States. The U.S. Competent Authority's determination would be 
communicated directly to the other country's Competent Authority, and 
it would be published in the Federal Register. No later than 60 days 
following publication in the Federal Register of that Competent 
Authority determination, offerors domiciled in the other country would 
be required to file a registration statement and pay the annual fee. If 
such an offeror were not registered, it could not offer a hazardous 
material for transportation from that country to the United States.

IV. Fee Schedule Under the Current Program

    Under 49 U.S.C. 5108 the amount of the registration fee which may 
be collected from a person required to register with RSPA may not be 
less than $250.00 nor more than $5,000.00. The current registration fee 
is $250.00 for all persons required to be registered with RSPA, plus a 
processing fee of $50.00. All registrants, regardless of the size of 
their company, their level of income, or the extent to which they 
engage in hazardous materials transportation activities, currently pay 
the same registration fee.

V. Funding Shortfalls and Compliance Enforcement

A. Training and Planning Program Funding Shortfall

    For the public sector training and planning program, 49 U.S.C. 5116 
and 5127 provide an annual authorization in the amount of $18.975 
million from 1993 through 1998. The authorization allocates $5 million 
for planning grants; $7.8 million for training grants; $1 million for 
development of a national curriculum; $3.2 million for monitoring and 
technical assistance by DOT and other Federal departments and agencies; 
$250,000 for a hazmat employee training grant program; and up to 10% of 
the amount made available from the registration fee account (or a 
maximum of $1.725 million) for the administrative costs of the program.
    The planning and training grants awarded to States and Indian 
tribes, as well as expenditures for development of the training 
curriculum and other elements of the program, are drawn from an account 
established by the Secretary of the Treasury for the deposit of 
registration fees. In the registration years ending in June 1993 and 
1994, registration fees collected and deposited into that account under 
the registration program amounted to $6.8 million and $6.7 million, 
respectively. An estimated $6.25 million in registration fees will be 
deposited during the current registration year ending in June 1995.
    Currently, annual registration fees do not provide all of the $12.8 
million authorized for training and planning grants to States and 
Indian tribes or the amounts authorized for other purposes. This 
funding shortfall compelled the Department to reduce grant allocations 
to the States and Indian tribes by approximately 40%. Increased 
registration fees will permit RSPA to substantially improve support of 
hazardous materials emergency response planning and training to the 
extent contemplated by Congress.

B. Outreach Efforts, Compliance, and Enforcement

    RSPA has conducted an extensive outreach effort to increase 
awareness of the registration requirement. Over 400,000 informational 
brochures have been distributed through direct mailing campaigns and 
during presentations to industry. Those mailing campaigns targeted, 
among others, more than 46,000 carriers and shippers identified by the 
Federal Highway Administration's (FHWA) Office of Motor Carriers; more 
than 22,000 generators and 13,000 transporters of hazardous waste, as 
identified by the Environmental Protection Agency; nearly 6,000 
shippers identified in RSPA's Hazardous Materials Incident Reporting 
System; approximately 4,000 holders of hazardous materials exemptions 
issued by RSPA; thousands of shippers and carriers that constitute the 
membership of several trade associations having an interest in the 
transportation of hazardous materials; and numerous State agencies. 
During this outreach, RSPA has cross-checked its registrations data 
base with each of the other lists provided by State agencies, and 
others, to identify potential cases of non-compliance. The registration 
program has been publicized in trade magazines and industry 
newsletters. Three supplemental notices have been published in the 
Federal Register advising the public of registration requirements. 58 
FR 10985, February 23, 1993; 58 FR 26040, April 29, 1993; and 59 FR 
22132, April 29, 1994. Compliance enforcement with the registration 
requirements was a key element of ROADCHECK-93, a nationwide inspection 
effort sponsored by the FHWA. Of 2,300 placarded trucks that were 
checked for proof of registration during that inspection, 88% were 
registered and had proof on board. Of the 12% that did not have proof 
on board, 80% were already registered. The Federal Railroad 
Administration (FRA) has publicized the registration program through 
technical bulletins and informational brochures distributed to their 
regional offices and all FRA inspectors. Approximately 60 Federal 
enforcement actions have been initiated throughout the United States, 
and eighteen State enforcement agencies have issued more than 250 
citations for failure to register. Finally, during May, 1994, RSPA's 
Associate Administrator for Hazardous Materials Safety wrote to each 
State grant recipient to request [[Page 5824]] their assistance in 
identifying persons who have not registered, but who are required to do 
so.
    As an alternative to increasing registration fees, RSPA recently 
proposed that offerors and transporters verify the registration status 
of each other before transportation begins. See Notice of Proposed 
Rulemaking in Docket HM-208A, 59 FR 15602, April 1, 1994. Most 
commenters opposed this proposal. Commenters overwhelmingly believed 
that Federal and State agencies should be responsible for enforcing the 
regulations, not industry. Logistical problems, administrative burdens, 
and increased costs were cited by commenters opposing this proposal. 
RSPA did not adopt the proposal in the final rule. 59 FR 32930, June 
27, 1994.
    Based on our outreach, our compliance efforts, and the results of 
ROADCHECK-93, RSPA believes the compliance rate to be approximately 
90%. A significant increase in the campaign to inform shippers and 
carriers through education and stronger compliance is not expected to 
result in a sufficient number of new registrants to make-up the current 
funding shortfall. At the same time, 100% compliance remains the goal, 
and RSPA invites the submission of information which may be used to 
identify and contact unregistered offerors and transporters of 
hazardous materials. Suspected violations of the registration 
requirements may 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.

VI. Factors Taken Into Consideration in Developing the Proposals of 
This NPRM

    Within the range of $250.00 to $5,000.00, 49 U.S.C. 5108 allows 
RSPA to base the amount of the registration fee on one or more of the 
following factors:
    (1) The gross revenues from the transportation of hazardous 
materials;
    (2) The types of hazardous materials transported or caused to be 
transported;
    (3) The quantities of hazardous materials transported or caused to 
be transported;
    (4) The number of shipments of hazardous materials;
    (5) The number of activities which a person carries out for which a 
filing of a registration statement is required;
    (6) The threat to property, persons, and the environment from an 
accident or incident involving the hazardous materials transported or 
caused to be transported;
    (7) The percentage of gross revenues which are derived from the 
transport of hazardous materials;
    (8) The amount of funds which are made available to carry out the 
emergency response planning and training grant program; and
    (9) Such other factors as RSPA considers appropriate.
    Given the relatively narrow permissible range of the registration 
fee (between $250.00 and $5,000.00), RSPA believes that the fee levels 
should be as simple and as straightforward as possible so as to be 
easily understood, administered, and enforceable. RSPA also believes 
that the fee levels should consider the comparative risks that may be 
posed by the types of activities covered by the registration 
requirement, to which emergency response planning and training are 
addressed. This includes the difference in the level of activity 
between small and large companies as well as any differences between 
the ``types of hazardous materials transported or caused to be 
transported''--e.g., a highway route controlled quantity of radioactive 
materials, or a shipment of 5,000 pounds or more of one hazardous 
material for which placarding is required.
    In trying to strike a balance between equity and efficiency 
considerations, and in trying to make the registration process as clear 
and as administratively simple as possible, RSPA has tried to link the 
registration fee to information which is readily available to potential 
registrants, which can be verified by inspection and enforcement 
personnel, and which bears some relationship to the risk or magnitude 
of a person's involvement in hazardous materials transportation 
activities. Although the registration statement and fee level 
categories are excepted from the Paperwork Reduction Act by 49 U.S.C. 
5108, RSPA has sought to avoid any approach which would entail a large 
recordkeeping and accounting burden on industry and the government. For 
example, basing the annual registration fee on a person's annual gross 
revenue, or on the percentage of gross revenue derived from the 
transportation of hazardous materials, could require significant 
changes in the way paperwork tracking and accounting procedures are 
handled by a company. Further, this information would be subject to 
verification in order to ensure that a person's annual fee was in fact 
commensurate with annual gross revenue, or with the percentage of gross 
revenue, derived from the company's transportation of hazardous 
materials.
    One commenter on the proposal under HM-208A, the National 
Industrial Transportation League (NITL), stated that, if the universe 
of prospective registrants is smaller than originally estimated, an 
equitable increase in fees to cover a deficiency in funds would be less 
costly and burdensome than requiring offerors and transporters to 
verify each other's registration status. NITL believed that this 
deficiency could be eliminated by increasing the flat fee or by 
implementing a graduated fee schedule with registrants who are 
significantly more involved in the transport of hazardous material 
bearing a proportionately larger share of the increase.
    At its annual meeting on July 23-28, 1994, the National Conference 
of State Legislatures (NCSL) again expressed its support of the action 
taken by Congress in the 1990 amendments to the Hazardous Materials 
Transportation Act (now replaced by 49 U.S.C. 5101 et seq.) to clarify 
government's regulatory roles and responsibilities; establish uniform 
standards for regulation; improve the existing preemption determination 
procedure; provide increased financial support for inspection, 
enforcement, training and response activities; guarantee State fiscal 
autonomy; and increase overall program coordination and data 
collection. NCSL also expressed its concern that the current funding 
mechanism for Federal grants to State training and emergency response 
activities is deficient. These concerns include unreliable 
appropriations; insufficient receipt of registration fees; high 
administrative costs; and lack of collection enforcement.

VII. Proposed Fees To Be Assessed for Funding the National Emergency 
Response Training and Planning Grant Program

    In order to adequately fund the training and planning grant 
program, RSPA seeks, through this rulemaking action, to collect an 
amount equal to the annual funding authorization of $18.975 million. 
RSPA believes that this is best accomplished by proposing fee levels 
that range from the statutorily mandated minimum ($250.00) to the 
mandated maximum ($5,000.00), depending on the type, quantity, and the 
manner in which hazardous materials are offered for transportation or 
transported.
    RSPA is proposing to establish a graduated fee schedule based on 
the type of hazard posed and the quantity of material offered for 
transportation or transported during the prior calendar year. Any 
person registering for a registration year subsequent to a year in 
[[Page 5825]] which it did not offer or transport hazardous material of 
the type, and quantity, for which registration is required would pay 
the minimum registration fee of $250.00, plus the $50.00 processing 
fee, for a total fee of $300.00.
    RSPA believes that this regulatory approach provides fee levels 
which broadly address many of the factors contained in 49 U.S.C. 5108. 
Thus, it addresses the types and quantities of hazardous materials 
transported or caused to be transported; the threat to property, 
persons, and the environment from an accident or incident involving the 
hazardous materials transported or caused to be transported; gross 
revenues from the transportation of hazardous materials--to the extent 
that these revenues are a function of hazardous materials 
transportation-related activity; and the need to adequately fund the 
mandated training and planning grant program.
    In addition, the proposal provides a reasonably fair and equitable 
solution to the great disparity between many small companies who are 
engaged in the shipment and transportation of hazardous materials, and 
large companies which annually manufacture, offer and transport 
thousands of tons of hazardous materials. RSPA is also confident that 
the revised fee structure would provide a sound basis for the funding 
and continued integrity of the emergency response training and planning 
grant program at a level authorized by law.

VIII. Discussion of Proposed Fee Levels

A. General

    Under this proposal, all persons currently required to file a 
registration statement with RSPA would continue to be assessed, at a 
minimum, a registration fee of $250.00, plus a processing fee of 
$50.00, for a total of $300.00. In addition, offerors and transporters 
who handle quantities of hazardous materials that pose a greater hazard 
potential would pay higher registration fees, up to $5,000.00, plus the 
$50.00 processing fee, for a total of $5,050.00.
    The proposed fee schedule is a tiered system that follows the 
mandatory registration filing criteria specified in 49 U.S.C. 5108 and 
reflects the hazard potential posed by various transportation 
activities. The complete fee schedule appears in the table in 
Sec. 107.612 later in this document. For Class 7 (radioactive 
materials), a total annual fee of $5,050.00, the maximum permitted by 
Sec. 5108, is assessed for transportation of any highway route 
controlled quantity. For explosives and for poison inhalation hazard 
(PIH), Zone A, materials there is a three-tiered sub-system of fees. 
The tiered fees, including the $50.00 processing fee, are $5,050.00 for 
larger quantities, $2,550.00 for intermediate quantities, and $300.00 
for smaller quantities.
    The schedule of registration fees for hazardous materials in bulk 
packagings is keyed to the number of different bulk packagings used 
during the year. As used in the Table in Sec. 107.612, ``different'' 
bulk packagings refers to bulk packagings that are separately 
identifiable through permanent markings, serial numbers, or the like. 
Fees would be incrementally assessed based upon the number of different 
bulk packagings, including tank cars, cargo tank motor vehicles, 
portable tanks (e.g., IM-101/102), hopper vehicles, and hopper cars. 
Total annual fee levels would be based, in three increments ($5,050.00, 
$2,550.00, and $500.00), upon the number of different bulk packagings 
offered for transportation or transported during the prior calendar 
year.
    Finally, an annual registration fee of $250.00, the minimum allowed 
by Sec. 5108, plus the $50.00 annual processing fee, for a total of 
$300.00, is assessed for the transportation of 5,000 pounds or more of 
aggregated non-bulk packages of hazardous materials for which 
placarding is required, and for persons not engaged in any of the 
higher fee activities in the prior calendar year.
    Persons who perform both offeror and carrier functions would be 
assessed fees based on the full scope of their transportation 
activities. However, no person would be required to pay more than the 
highest single annual fee associated with that person's operations, as 
specified in the Registration Fee Table in Sec. 107.612(a).
    The following are hypothetical examples of total annual fees 
payable by persons who, based upon their prior calendar year hazardous 
material transportation activity, are required to file a registration 
statement:
    (1) A shipper that offered eight or more different tank cars would 
be assessed a total annual fee of $5,050.00.
    (2) A carrier that transported only eleven different cargo tank 
motor vehicles would be assessed a total annual fee of $500.00.
    (3) A shipper that offered fifteen different cargo tank motor 
vehicles and 75 different Class 106 multi-unit tank car tanks (nominal 
water capacity of 2,000 pounds) loaded with a PIH, Zone A, material 
would be assessed a total annual fee of $2,550.00.
    RSPA believes this simplified distinction between large, medium, 
and small entities achieves the same level of equity as may be achieved 
by more complex calculations, such as the determination of revenue ton-
miles or total number of shipments. The bulk transportation fee 
categories also would be mutually exclusive (e.g., a person that offers 
seven tank cars and 23 cargo tank motor vehicles would be assessed fees 
as a medium-size entity, since neither category by itself results in a 
classification as a large entity).
    The requirement to register, and the amount of the fee, are based 
upon transportation that occurs to, from, or between points within the 
United States. Thus, even though a foreign motor carrier's fleet may 
comprise a large number of cargo tank motor vehicles, the carrier's 
registration fee level in this category is based upon the number of 
different cargo tank motor vehicles actually used during the prior year 
for hazardous materials transportation to, from, or between points 
within the United States.
    Although the proposed fee schedule loses some of the simplicity of 
the current system, RSPA is proposing these changes in the interest of 
striking a balance between equity considerations, minimizing the impact 
on smaller businesses, and insuring the adequacy of funding for the 
emergency response training and planning grant program. In addition, it 
is important to recognize that the emergency response planning and 
training program focuses upon those situations involving materials 
presenting the greatest hazard potential. Accordingly, RSPA believes 
scaled registration fees should be applied in such a way that the 
highest fees are paid by persons who offer or transport those 
materials.
    RSPA welcomes comments on the proposed graduated registration fee 
levels and the thresholds which trigger the increase in fees, as well 
as on any other factors that might be considered as the basis for the 
assessment of registration fees. For example, should there be more (or 
fewer) subdivisions in any of the five (5) categories of activities for 
which registration is required, and what should be the registration fee 
for each subdivision? Alternatively, should there be a progressive 
increase in the registration fee associated with an increase in 
activity (e.g., $250.00 for each tank car shipment--not to exceed 
$5,000.00 per year)?

B. Possible Expansion of the Registration Fee Base

    The regulatory evaluation prepared in support of this rulemaking 
action [[Page 5826]] considered an alternative that would expand the 
scope of coverage of the registration program. Specifically, within 
this alternative, RSPA evaluated the following options:
    (1) Include all shipments (bulk and non-bulk) for which placarding 
is required.
    (2) Include all shipments (bulk and non-bulk) for which placarding 
is required, except for certain transportation by a private carrier 
exclusively for agricultural purposes (i.e., nurse tanks, as specified 
in 49 CFR 173.315(m)).
    (3) Include certain manufacturers and reconditioners of packagings 
used in the transportation of hazardous materials.
    (4) Include all transport vehicles and freight containers which 
contain more than 400 kg (882 pounds) of a hazardous material.
    This alternative was not selected primarily because it would place 
an even greater burden on small shippers and carriers, thereby 
increasing the inequity that exists in the current fee structure. 
Moreover, in some cases, this may not add a significant number of 
persons required to register.
    For example, RSPA recently proposed [Docket HM-206, NPRM; 59 FR 
41848; August 15, 1994] several improvements to the existing hazard 
communications system that were identified as necessary by commenters 
to the ANPRM [Docket HM-206; 57 FR 24532; June 9, 1992], the National 
Academy of Sciences in its Special Report 239, ``Hazardous Materials 
Shipment Information for Emergency Response'', and agency initiative. 
RSPA is proposing to lower from 2,268 kg (5,000 pounds) to 1,000 kg 
(2,205 pounds) the quantity for specific hazard class placarding when 
one category of material is loaded on a transport vehicle at one 
loading facility. However, it seems probable that most persons who 
offer or transport at least one shipment per year of more than 1,000 kg 
of one class of a hazardous material will offer or transport at least a 
similar shipment that exceeds 2,268 kg. If so, lowering the threshold 
quantity, for shipments of hazardous materials in non-bulk packagings, 
would not result in a significant number of new persons having to file 
a registration statement.
    However, RSPA is proposing, in this rulemaking, to broaden the 
scope of materials extremely toxic by inhalation covered by the 
registration requirement, to include every ``material poisonous by 
inhalation'' (PIH) as defined in 49 CFR 171.8 that meets the criteria 
for Hazard Zone A (extremely toxic). This change would add several PIH 
materials that are listed in the Hazardous Materials Table in 49 CFR 
172.101 as a Class 3, Class 8, Division 4.2 or Division 5.1 hazardous 
material. It is not likely that this change will add a substantial 
number of persons that are required to register.
    Commenters are encouraged to provide specific comments as to 
whether the registration requirement should be expanded in any way, 
including the desirability of making it parallel to the proposed 
placarding requirement, i.e., to 1,000 kg or more of any single class. 
Commenters should also provide information on the effect of any such 
expansion of the registration requirement, including an estimate of the 
number of additional persons that would be required to register.

C. Fee Reductions in Subsequent Years

    Under 49 U.S.C. 5108(g)(2)(B), adjustments in registration fee 
levels are required if there is an uncommitted balance in the 
registration fee account. Therefore, if any new fee levels are adopted 
and result in the collection of fees significantly greater than the 
approximately $19 million authorized by 49 U.S.C. 5116 and 5127, RSPA 
proposes to make proportional reductions, on a year-by-year basis, in 
the registration fees within the statutory limits ($250.00-$5,000.00). 
This would be announced by publication of a notice in the Federal 
Register at least 60 days prior to the beginning of the registration 
year.

IX. An Industry Perspective

    During May 1994, an industry working group was organized by the 
Hazardous Materials Advisory Council to review the current registration 
program and to make recommendations to RSPA in regard to the future of 
the program. Recommendations, dated September 23, 1994, were received 
and are available in the public docket. They will be reviewed and 
considered during this proceeding.

X. Section-By-Section Summary

Section 107.601

    In paragraph (c), the entry for materials extremely toxic by 
inhalation would be revised to include every ``material poisonous by 
inhalation,'' as defined in 49 CFR 171.8, that meets the criteria for 
Hazard Zone A. This proposed requirement effectively captures poison 
inhalation hazard, Hazard Zone A, materials in divisions other than 
Division 2.3 and Division 6.1 (e.g., isobutyl isocyanate, a Class 3 
hazardous material). The Hazard Zone A assignment for isobutyl 
isocyanate, and certain other materials, is specifically communicated 
through reference to Special Provision 1 in column 7 of the Hazardous 
Materials Table.

Section 107.606

    This proposed revision would remove the July 1, 1996 limitation on 
the exception for foreign offerors. In paragraph (b), RSPA proposes to 
apply the registration and fee payment requirements to foreign offerors 
domiciled in any country that requires offerors domiciled in the United 
States to file a registration statement or pay a fee. See also the 
discussion in Section III.B. of this preamble.

Section 107.612

    In this proposed rule, all persons currently required to file a 
registration statement with RSPA would continue to be assessed an 
annual registration fee, at a minimum, of $250.00, plus a $50.00 
processing fee, for a total of $300.00. In addition, RSPA is proposing 
graduated registration fee levels, up to a maximum of $5,000.00 (plus 
the $50.00 processing fee), to which certain registrants would be 
subject on the basis of having offered or transported during the prior 
calendar year: a highway route controlled quantity of Class 7 
(radioactive) materials; certain size shipments of Division 1.1, 1.2 or 
1.3 (explosive) materials, or materials extremely toxic by inhalation; 
or a specified number of different bulk packagings.
    The entire schedule of fees appears in a table within paragraph 
(a). The fees are keyed to the five activities for which registration 
is mandatory, and, where appropriate, specified in increments generally 
related to the quantity of hazardous material offered for 
transportation or transported.
    In paragraph (b), RSPA is proposing a provision to proportionally 
reduce fees in subsequent registration years based on uncommitted 
balances, if any, in the grant account.

Section 107.616

     Paragraphs (d)(2) and (d)(3) would be revised to provide 
procedures for the payment of any applicable increased fee required by 
the proposed amendment to Sec. 107.612 when submitting a registration 
statement under the provisions of an expedited registration.

XI. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and was reviewed by the 
Office of Management and Budget. The rule is not considered a major 
rule under the Regulatory Policies and Procedures of [[Page 5827]] the 
Department of Transportation [44 FR 11034] because its economic impact 
on certain hazardous materials offerors and transporters is not 
expected to exceed $100 million annually. This proposal is expected to 
generate additional registration fees of approximately $12 million per 
year. A preliminary regulatory evaluation is available for review in 
the Docket. Because the statute mandates the establishment and 
collection of fees, the discretionary aspects of this rulemaking are 
limited to setting the amount of the fee within the statutory range for 
each person subject to the registration program. The proposed fees are 
not related to the cost of RSPA's hazardous materials safety programs. 
The fees to be paid by shippers and carriers of certain hazardous 
materials in transportation are related to the benefits received by 
these persons from the sale and transportation of hazardous materials 
and from emergency response services provided by public sector 
resources, should an accident or incident occur. The fees are also 
related to expenses incurred by State, Indian tribal, and local 
hazardous materials emergency preparedness and response activities.

B. Executive Order 12612

    This action has been analyzed in accordance with Executive Order 
12612 (``Federalism''). States and local governments are ``persons'' 
under 49 U.S.C. 5102, 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, RSPA lacks discretion in this area, and 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 U.S.C. 5108, 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 in 49 CFR Part 107

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

    In consideration of the foregoing, 49 CFR part 107 is proposed to 
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 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    2. In Sec. 107.601, paragraph (c) would be revised to read as 
follows:


Sec. 107.601  Applicability.

* * * * *
    (c) More than one L (1.06 quarts) per package of a material 
extremely toxic by inhalation (i.e., ``material poisonous by 
inhalation,'' as defined in Sec. 171.8 of this chapter, that meets a 
criteria for ``hazard zone A,'' as specified in Secs. 173.116(a) or 
173.133(a) of this chapter);
* * * * *
    3. Section 107.606 would be revised to read as follows:


Sec. 107.606  Exceptions.

    (a) The following are excepted from the requirements of this 
subpart:
    (1) An agency of the Federal government.
    (2) A State agency.
    (3) An agency of a political subdivision of a State.
    (4) An employee of any of those agencies in paragraphs (a)(1) 
through (a)(3) of this section with respect to the employee's official 
duties.
    (5) A hazmat employee (including, for purposes of this subpart, the 
owner-operator of a motor vehicle that transports in commerce hazardous 
materials if that vehicle, at the time of those activities, is leased 
to a registered motor carrier under a 30-day or longer lease as 
prescribed in 49 CFR part 1057 or an equivalent contractual agreement).
    (6) A person domiciled outside the United States who offers, solely 
from a location outside the United States, hazardous materials for 
transportation in commerce, provided that the country of which such 
person is a domiciliary does not require persons domiciled in the 
United States who solely offer hazardous materials for transportation 
to the foreign country from places in the United States to file a 
registration statement or to pay a registration fee.
    (b) Upon making a determination that persons domiciled in the 
United States who offer hazardous materials for transportation to a 
foreign country solely from places in the United States must file 
registration statements, or pay fees, the U.S. Competent Authority will 
provide notice of such determination directly to the Competent 
Authority of that foreign country, and by publication in the Federal 
Register. Persons affected by this determination shall file a 
registration statement and pay the required fee no later than 60 days 
following publication of the determination in the Federal Register.
    4. Section 107.612 would be revised to read as follows:


Sec. 107.612  Amount of fee.

    (a) Each person subject to the requirements of this subpart shall 
report its activities and pay the highest single (not aggregate) annual 
fee (which includes a $50.00 processing fee) that reflects the type and 
quantity of hazardous materials offered for transportation or 
transported into, from, or within the United States during the prior 
calendar year, as specified in the following table:

                                                                                                                                                        
[[Page 5828]]                                                                                                                                           
        Registration Fee Table for Hazardous Materials Activities       
------------------------------------------------------------------------
                                                                Total   
  Type of hazardous material             Quantity             annual fee
------------------------------------------------------------------------
Radioactive Material. A        One (1) or more packages....    $5,050.00
 highway route controlled                                               
 quantity of a Class 7                                                  
 (radioactive) material, as                                             
 defined in Sec. 173.403(l)                                             
 of this chapter.                                                       
Explosive Material. A          10,000 kg (22,046 pounds) or     5,050.00
 Division 1.1, 1.2 or 1.3       more.                                   
 explosive material, as                                                 
 defined in Sec. 173.50 of                                              
 this chapter, in a motor                                               
 vehicle, rail car or freight                                           
 container.                                                             
                               1,000 kg (2,205 pounds) or       2,550.00
                                more but less than 10,000               
                                kg (22,046 pounds).                     
                               More than 25 kg (55 pounds)        300.00
                                but less than 1,000 kg                  
                                (2,205 pounds).                         
Extremely Toxic by             13,248 L (3,500 gallons) or      5,050.00
 Inhalation. A ``material       more.                                   
 poisonous by inhalation,''                                             
 as defined in Sec. 171.8 of                                            
 this chapter, that meets the                                           
 criteria for ``hazard zone                                             
 A'' (see Secs. 173.116(a)                                              
 and 173.133(a) of this                                                 
 chapter) in a packaging                                                
 having a capacity of--.                                                
                               More than 450 L (119             2,550.00
                                gallons) but less than                  
                                13,248 L (3,500 gallons).               
                               More than 1 L (1.06 quart)         300.00
                                but less than or equal to               
                                450 L (119 gallons).                    
Hazardous Material in a Bulk   8 or more different tank         5,050.00
 Packaging. A hazardous         cars, or 24 or more                     
 material in a bulk             different other bulk                    
 packaging, as defined in       packagings.                             
 Sec. 171.8 of this chapter,                                            
 having a capacity equal to                                             
 or greater than 13,248 L                                               
 (3,500 gallons) for liquids                                            
 or gases or more than 13.24                                            
 cubic meters (468 cubic                                                
 feet) for solids and the                                               
 number of different                                                    
 packagings used during the                                             
 year is--.                                                             
                               4-7 different tank cars, or      2,550.00
                                12-23 different other bulk              
                                packagings.                             
                               1-3 different tank cars, or        500.00
                                1-11 different other bulk               
                                packagings.                             
Placarded Hazardous Material   One (1) or more shipments of       300.00
 That is Not in a Bulk          hazardous materials in                  
 Packaging.                     other than a bulk packaging             
                                of 2,268 kg (5,000 pounds)              
                                gross weight or more of one             
                                class of hazardous material             
                                for which placarding of a               
                                vehicle, rail car, or                   
                                freight container is                    
                                required for that class,                
                                under provisions of subpart             
                                F of part 172 of this                   
                                chapter.                                
During the prior calendar      Will offer for                     300.00
 year did not engage in any     transportation or transport             
 of the above activities.       during this registration                
                                year a hazardous material               
                                as specified above.                     
------------------------------------------------------------------------

    (b) For any registration year the Administrator may reduce, in a 
proportional amount, all the amounts greater than $300.00 indicated in 
the registration fee table in paragraph (a) of this section to reflect 
any uncommitted balance in the account established under 49 U.S.C. 
5116. Notice of such adjustments will be published in the Federal 
Register no later than April 1 prior to the beginning of the 
registration year affected.
    5. In Sec. 107.616, paragraphs (d)(2) and (d)(3) would be revised 
to read as follows:


Sec. 107.616  Payment procedures.

* * * * *
    (d) * * *
    (2) Pay $350.00 (including the $50.00 processing fee and an 
additional $50.00 expedited handling fee); and
    (3) Submit all of the following to RSPA before the expiration date 
of the temporary registration number:
    (i) A completed registration statement;
    (ii) Proof of $350.00 payment; and
    (iii) Payment of any balance of the annual fee (as specified in 
Sec. 107.612) in excess of $300.00.

    Issued in Washington DC on January 25, 1995 under the authority 
delegated in 49 CFR part 106, Appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-2281 Filed 1-26-95; 10:20 am]
BILLING CODE 4910-60-P