[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Rules and Regulations]
[Pages 7297-7310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3300]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 107

[Docket No. RSPA-99-5137 (HM-208C)]
RIN 2137-AD17


Hazardous Materials Transportation; Registration and Fee 
Assessment Program

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

ACTION: Final rule.

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SUMMARY: This final rule amends the statutorily mandated registration 
and fee assessment program for persons who transport or offer for 
transportation certain categories and quantities of hazardous 
materials. In this final rule, RSPA is: (1) Expanding the criteria for 
those persons required to register to include all persons who offer for 
transportation or transport hazardous materials that require placarding 
(except for those activities of farmers directly in support of farming 
operations); (2) Adopting a two-tiered fee schedule--$300 for those 
registrants meeting the U.S. Small Business Administration criteria for 
defining a small business and $2,000 for all other registrants; and (3) 
Permitting registration for one, two, or three years on a single 
registration statement. This final rule is intended to increase funding 
for the national Hazardous Materials Emergency Preparedness grants 
program.

EFFECTIVE DATE: May 1, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of 
Hazardous Materials Planning and Analysis, (202) 366-4484, or Ms. 
Deborah Boothe, Office of Hazardous Materials Standards, (202) 366-
8553, Research and Special Programs Administration, U.S. Department of 
Transportation, 400 Seventh Street, SW, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

List of Topics

I. Background
    A. Current Registration Program
    B. Hazardous Materials Emergency Preparedness (HMEP) Grants 
Program
II. Summary of Proposal to Increase HMEP Funding

[[Page 7298]]

III. Discussion of Comments and Regulatory Changes
    A. General
    B. Expansion of Base
    C. Two-Tiered Fee Structure
    D. Clarification of ``Offeror'' and ``Shipper''
    E. Registration Number Display
    F. Constitutionality of Program
    G. Statutory Language and Intent
    H. FY 2000 Hazardous Materials Program Funding
IV. Rulemaking Analysis and Notices

I. Background

A. Current Registration Program

    In 1990, amendments to Federal hazardous materials transportation 
law, now codified at 49 U.S.C. 5101 et seq. (the law), required the 
Secretary of Transportation to establish a registration program for 
persons who transport or offer for transportation in commerce certain 
types and quantities of hazardous materials. The Secretary delegated 
this authority to RSPA's Administrator (49 CFR 1.53(b)(1)). The 
registration program enables RSPA to gather information about the 
transportation of hazardous materials and to fund a grants program to 
support hazardous materials emergency response planning and training 
activities by State and local governments.
    Section 5108 of the law requires each person who transports or 
causes to be transported in commerce one or more of the following 
categories of hazardous materials to file a registration statement with 
RSPA and pay an annual registration fee:
    (1) A highway-route controlled quantity of Class 7 (radioactive) 
materials;
    (2) More than 25 kilograms (55 pounds) of a Division 1.1, 1.2, or 
1.3 (explosive) material in a motor vehicle, rail car, or freight 
container;
    (3) A package containing more than one liter (1.06 quarts) of a 
hazardous material the Secretary designates as extremely toxic by 
inhalation, which has been identified as a material meeting the 
criteria for a Zone A material that is toxic by inhalation;
    (4) A hazardous material in a bulk packaging, container, or tank 
with a capacity equal to or greater than 13,248 liters (3,500 gallons) 
for liquids or gases or more than 13.24 cubic meters (468 cubic feet) 
for solids; or
    (5) A shipment in other than a bulk packaging of 2,268 kilograms 
(5,000 pounds) or more gross weight of a class of hazardous materials 
for which placarding of a vehicle, rail car, or freight container is 
required.
    Section 5108(a)(2) of the law permits RSPA to extend registration 
requirements to persons who:

    (1) Transport or cause to be transported hazardous material in 
commerce but do not engage in the activities listed above; or
    (2) Manufacture, fabricate, mark, maintain, recondition, repair, 
or test packagings that the person represents, marks, certifies, or 
sells for use in transporting hazardous materials in commerce.
    In addition, Sec. 5108 (g)(2)(A) requires RSPA to set the fee at 
a minimum of $250 to a maximum of $5000.

    In establishing the registration and fee assessment program in 
1992, RSPA chose to require registration only by those persons under a 
statutory obligation to do so. All registrants currently pay the same 
registration fee regardless of their size, their income, or the extent 
to which they engage in hazardous materials transportation activities. 
RSPA imposed the minimum $250 fee on all registrants, plus an 
additional fee, currently set at $50, to pay for the costs of 
processing the registration statements, as authorized by 49 U.S.C. 
5108(g). (See final rule 57 FR 30630 (July 9, 1992) and current 
regulations at 49 CFR part 107, subpart G.) The current regulations, in 
Sec. 107.608(a), require an annual submission of a registration 
statement.
    To ensure that all persons required to register know of and comply 
with the requirements of the registration program, RSPA has conducted 
extensive outreach efforts. Approximately 780,000 informational 
brochures have been distributed through direct mailing campaigns and 
during presentations to industry. RSPA has annually mailed registration 
brochures and forms to hazardous materials shippers and carriers newly 
entered into the Federal Highway Administration's (FHWA) Motor Carrier 
and Highway Safety census of highway carriers and shippers, and to 
newly identified shippers and carriers named on the hazardous materials 
incident reports, (DOT Form F 5800.1). In addition, the registration 
program has been publicized in trade magazines and industry 
newsletters, and seven notices of the registration requirements have 
been published in the Federal Register. The registration instructional 
brochure and form are also available on RSPA's Hazardous Materials 
Safety internet website: (http://hazmat.dot.gov).
    Responsibility for enforcement of the registration requirement is 
shared by RSPA, the DOT operating administrations, and state and local 
agencies that have assumed this role as part of a cooperative Federal/
state partnership. Inspections conducted by RSPA, FHWA, and the Federal 
Railroad Administration routinely have included a check for 
registration. We believe that the rate of compliance with the 
registration requirements is relatively high. Persons knowing of a 
violation of the registration requirements should notify an Office of 
Hazardous Materials Enforcement regional office, a DOT operating 
administration office, or state or local enforcement authority of the 
violation.

B. Hazardous Materials Emergency Preparedness (HMEP) Grants Program

1. 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, national direction, and 
guidance to enhance State, local, and tribal hazardous materials 
emergency planning and training. The HMEP grants program builds on 
existing programs and supports the working relationships 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 hazardous 
materials planning and training programs of State, local, and tribal 
governments. To ensure this growth, Secs. 5116(a)(2)(A) and 
5116(b)(2)(A) of the law require a State or Native American tribe 
applying for a grant to certify that the amount it spends on hazardous 
materials planning and training, not counting Federal funds, will at 
least equal the average amount spent for these purposes during the last 
two fiscal years. The HMEP grants, therefore, represent additional 
funds that supplement the amount already being provided by the State or 
tribe. To further encourage growth in planning and training funds, 
Sec. 5116(e) limits the Federal share to 80 percent of the costs of the 
additional activity for which the grants are made, thus requiring the 
State or tribe to provide 20 percent of these additional costs. By 
accepting an HMEP grant, the State or tribe commits itself not only to 
maintaining its previous level of support, but increasing that level by 
an amount representing 20 percent of the funds newly expended on grant-
supported activities each year. For

[[Page 7299]]

example, an HMEP grant of $100,000 requires an additional commitment of 
$25,000 in State or tribal funds over the average amount spent by the 
agency during the previous two years. These additional State or tribal 
funds may be provided in the form of direct fiscal support or through 
the provision of in-kind resources.
    Since 1993, all States and territories and 35 Native American 
tribes have been awarded planning and training grants totaling $47.1 
million. These grants, which supplement funds from States, tribes, and 
local agencies, helped to:

     Train 694,000 hazardous materials responders;
     Conduct 2,220 commodity flow studies;
     Write or update more than 19,600 emergency plans over 
the last 5 years;
     Conduct 3,600 emergency response exercises; and
     Assist 8,910 local emergency planning committees 
(LEPCs) over the last 5 years.

    In addition, over the past six years, HMEP grants program funds 
have been used to support the following related activities in the total 
amounts indicated:

     $2.3 million for development and periodic updating of a 
national curriculum of courses necessary 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: 
First responder awareness, first responder operations, hazardous 
materials technician, hazardous materials specialist, and on-scene 
commander.
     $1.7 million to monitor public sector emergency 
response planning and training for an accident or incident involving 
hazardous materials, and to provide technical assistance to a State 
or Native American tribe for carrying out emergency response 
training and planning for an accident or incident involving 
hazardous materials.
     $3.3 million for periodic updating and distribution of 
the North American Emergency Response Guidebook.
     $750,000 for supplemental grants to the International 
Association of Fire Fighters (IAFF) to train instructors to conduct 
hazardous materials response training programs.
2. Increased Funding of the HMEP Grants Program
    In each of the eight registration years since 1992, RSPA has 
received approximately 27,000 registration statements and an average of 
$6.8 million to support the HMEP grants program. This has provided an 
average of $6.4 million annually for planning and training grants, only 
50% of the $12.8 million authorized by law for these purposes ($5 
million for planning and $7.8 million for training). As discussed in 
RSPA's April 15, 1999, notice of proposed rulemaking (NPRM) (64 FR 
18786), the HMEP grants program has accomplished much in a short time, 
but many needs are not being met. 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, both through direct Federal financial 
assistance for such training and by encouraging the provision of 
additional state and local funds for this purpose.
    In a recent review, RSPA estimated that 800,000 shipments of 
hazardous materials make their way through the national transportation 
system each day. These shipments range in size and type from single 
small parcels of consumer commodities, such as flammable adhesives and 
corrosive paint strippers, to bulk shipments of gasoline in cargo tank 
motor vehicles and flammable or toxic gases in railroad tank cars. Such 
shipments are transported in every State, every day of the year, and it 
is impossible to predict with any degree of certainty when and where an 
incident may occur. The potential threat requires the development of 
emergency plans and training of emergency responders on the broadest 
possible scale. Yet, RSPA also believes there are over 2 million 
emergency responders requiring initial training or periodic 
recertification training, including 250,000 paid firefighters, 800,000 
volunteer firefighters, 725,000 law enforcement officers, and 500,000 
emergency medical services (EMS) providers.
    The continuing need for training for emergency response personnel, 
whether paid or volunteer, is partially the result of a relatively high 
rate of turnover caused by the extraordinary demands expected of 
response providers in terms of time, physical exertion, and emotional 
stress. Emergency response personnel must be available at any time and 
at a moment's notice to respond to situations that by their very nature 
are unpredictable and pose a threat not only to the public in general 
but to the responder in particular. This turnover means that each year 
there is a significant number of recently recruited responders who must 
be trained at the most basic level. In addition, training at more 
advanced levels is not simply desirable; it is essential if emergency 
response personnel capable of effectively and safely responding to 
serious releases of hazardous materials are to be provided. For this 
reason, RSPA advocates advanced training at the first responder 
operations, hazardous materials technician, hazardous materials 
specialist, and on-scene commander levels in every emergency response 
team in the country. An increase in the funds available to the HMEP 
Grants Program will encourage the State, tribal, and local agencies to 
provide this more advanced, and more expensive, training.
    The unmet needs of States and Native American tribes for financial 
assistance in emergency preparedness planning and training for 
transportation-related incidents involving hazardous materials are 
great. RSPA is determined to narrow the current gap between the 
authorized grant levels and the available Federal funds by its careful 
targeting of the additional funds collected as a result of this 
rulemaking. RSPA believes that it is essential to increase the awards 
for emergency planning and training grants to the full $12.8 million 
authorized by the law and, at the same time, maintain current funding 
of the additional activities supported by the HMEP Grants Program 
described above.
    In FY 2000, RSPA intends to provide from registration fees $14.3 
million for:

     Training and planning grants ($12.8 million);
     Grants support to certain national organizations to 
train instructors to conduct hazardous materials response training 
programs ($250,000);
     Revising, publishing, and distributing the North 
American Emergency Response Guidebook ($600,000);
     Monitoring and technical assistance ($150,000);
     Continuing development of a national training 
curriculum ($200,000); and
     Administering the grants program ($300,000).

II. Summary of Proposal To Increase HMEP Funding

    To achieve its goal of funding the HMEP grants program activities 
at $14.3 million, RSPA published an NPRM on April 15, 1999 (64 FR 
18786), in which it proposed to expand the definition of those persons 
required to register and to impose a fee schedule based on the size of 
a business. RSPA conducted public meetings on May 25, 1999, in 
Washington, DC, and on June 22, 1999, in Des Moines, Iowa. The closing 
date for the comment period was extended until July 2, 1999. (64 FR 
28135)
    In the NPRM, RSPA proposed to require registration by any person, 
other than a ``farmer,'' who offers for transport or transports a 
shipment of hazardous materials that requires placarding. RSPA proposed 
a two-tiered fee schedule ($300 and $2,000), with the lower fee to be 
imposed on a registrant that meets the Small Business Administration

[[Page 7300]]

(SBA) criteria for a small business. The proposed exception for a 
``farmer,'' as defined in Sec. 171.8 of the Hazardous Materials 
Regulations (HMR), is limited to operations in direct support of the 
farmer's farming operations. RSPA also proposed reducing the processing 
fee from $50 to $25 in order to bring the aggregate amount collected 
closer to the amounts needed to process the registration statement and 
to issue the Certificate of Registration. Finally, RSPA proposed to 
permit registration for one, two, or three years on a single 
registration statement.

III. Discussion of Comments and Regulatory Changes

A. General

    RSPA received approximately 400 written comments, and 31 persons 
made oral presentations at the two public meetings. The commenters 
included representatives of emergency response organizations and LEPCs; 
individuals engaged in all modes of transportation, agricultural 
retailing, petroleum distribution, farming, and convenience store 
operations; and industry associations representing a broad spectrum of 
businesses that transport or offer for transport hazardous materials.
    Many commenters supported the intent of the proposal to fully fund 
the HMEP grants program. Grant recipients expressed strong support for 
the proposed changes. The National Association of SARA Title III 
Program Officials (NASTTPO) expressed strong support for fully funding 
the HMEP grants program through increased registration fees and stated 
the need for increased funding at all levels, especially in emergency 
planning and curriculum development. NASTTPO stated:

    The intent to raise additional funds to enhance support for the 
National Hazardous Materials Emergency Preparedness (HMEP) Grants 
Program is commendable and needed. It has been largely through the 
HMEP Grants program that significant planning actions, training 
programs and curriculum development have been accomplished that 
ultimately have better protected the hazardous materials responder, 
hazardous materials shipper, receiver and user alike. * * * 
Increased focus and impetus through an enhanced HMEP program are 
direly needed, particularly in light of potential diminished 
hazardous materials response support from other federal sources.

    The Connecticut State Emergency Response Commission stated, ``We 
support the proposed rule which would raise additional funds for the 
National Hazardous Materials Emergency Preparedness (HMEP) Grants 
Program. Funding from this grant program is extremely important to 
Connecticut's hazardous materials emergency planning and responder 
training efforts.''
    Emergency responders also strongly supported the proposal. The 
International Association of Fire Fighters (IAFF) stated:

    The IAFF has developed extensive experience training hazardous 
materials instructors through other federal grants dating back to 
1987. The RSPA program enabled us to expand our instructor training 
efforts and reach fire service trainers in all regions of the United 
States. * * * [W]e are able to target responders along common 
hazardous materials transportation routes and hubs. Our first 
project year was a tremendous success.

    Mr. Bradley D. Robinson, Captain in Charge of Hazmat Operations for 
the Sioux City Fire Department's Regional HazMat Team and current 
President of the Iowa Hazardous Materials Task Force, offered strong 
support for the proposed expansion of the base of registrants and 
increase in the registration fee. He stated that the:

* * * funding for that training gets harder and harder, which brings 
us back to the need to fully fund the HMEP Grants Program. * * * I 
would like to strongly urge that all of [the] proposed changes to 49 
CFR Part 107 be implemented. More importantly, I would like to ask 
those opposing these changes to join with us, the emergency 
responders, and accept more of the financial responsibility in 
training us to properly protect the public and environment from 
uncontrolled releases of the hazardous materials you use and/or 
transport. The bulk of financial responsibility of training and 
planning for your release should not be placed on the backs of the 
tax paying citizens.

    Mr. John Gardner, Fire Marshal of the Chandler, Arizona, Fire 
Department and a Maricopa County LEPC member, fully supported the 
proposed expansion of the base of registrants and increased 
registration fees. He stated, ``Increased funding needs to be provided 
for increased curriculum development that will ensure the innovation of 
programs is consistent with the rapidly changing technological and 
electronic advancements [that] are being made.''
    Several industry organizations and associations also expressed 
their support for fully funding the HMEP grants program. The Hazardous 
Materials Advisory Council (HMAC) stated, ``We recognize that the 
current system does not generate the amount of funding that was 
anticipated when the program was established. Moreover, we support the 
goal of funding the HMEP Grants Program to the $12.8 million level.''

B. Expansion of Base

    In 1995, an Industry Working Group (IWG) facilitated by HMAC 
provided recommendations on how the registration and fee collection 
requirements could be improved under Docket HM-208B. Among the IWG's 
recommendations was the expansion of the registration rule to apply to 
all shipments for which display of hazard warning placards is required. 
This IWG recommendation was joined by many industry associations and 
other persons who provided additional comments to the 1995 proposal. In 
the April 15, 1999, NPRM, RSPA proposed to expand the base of 
registrants to include any person who offers for transportation or 
transports a shipment of hazardous materials for which a hazard warning 
placard must be displayed on a bulk packaging, freight container, unit 
load device, transport vehicle or rail car. This proposal attracted 
both strong support and opposition in the public comments.
    Commenters who support the current proposal to expand the base of 
registrants note that the proposal would simplify compliance and 
enforcement. For example, HMAC commented that, ``extension of the 
requirement to register to such parties [that offer or transport any 
shipment that requires placarding] would greatly simplify the 
requirement to register; additionally, the requirement to placard is a 
generally accepted measure of the degree of hazard presented by any 
specific load.''
    The Chemical Manufacturers Association (CMA) also supports RSPA's 
proposed expansion of the base of registrants to include shippers and 
carriers of all placarded loads, with the exception of farmers (as 
defined in 49 CFR 171.8). CMA stated, ``Ease of compliance and 
simplicity of enforcement are critical components of a successful 
registration program and CMA believes the placarding requirement will 
satisfy these conditions.''
    The Association of Waste Hazardous Materials Transporters (AWHMT) 
and the National Tank Truck Carriers (NTTC) support expansion of the 
base of registrants to include all placarded loads, but oppose the 
exception proposed for farmers.
    A significant number of commenters oppose expansion of the base of 
registrants to all placarded loads. In particular, petroleum marketers 
and agricultural retailers and their associations assert that expanding 
the base to include all placarded loads and increasing the registration 
fee would place undue burdens on their industries. Over 250 commenters 
from

[[Page 7301]]

the petroleum distribution industry, such as the Petroleum Marketers 
Association of America (PMAA) and its member companies, expressed 
opposition to the proposed expansion of the base of registrants and the 
two-tiered fee structure. Many of these commenters stated that it is 
not ``fair'' to ``tax'' them to fund the HMEP grants program because 
they already pay local taxes to fund local firefighters. These 
commenters stated that they already provide adequate training to their 
customers and local emergency responders.
    The Petroleum Marketers and Convenience Store Association of Kansas 
also opposes expansion of the base of registrants and any fee increase. 
It stated that the proposed fee is excessive and favors the ``nation's 
largest corporations at the expense of small businesses.'' It stated, 
``to include small cargo tank operators into a program that should 
clearly be predicated on interstate commerce, and to require a small 
convenience store owner to pay the same fees assessed huge corporations 
is inequitable, at minimum.'' Finally, it stated, ``if DOT feels it 
must increase Hazmat funding by requiring that anyone hauling a 
placarded material be included in the program, then the agency should 
take steps to ensure that all classes of Hazmat transporters are 
subject to the provisions of the program and consequently required to 
pay the annual registration fee.''
    The Independent Lubricant Manufacturers Association (ILMA) stated, 
``this proposed expansion would create paperwork and administrative 
burdens on independent lubricant manufacturers far out of proportion to 
the potential benefits of the proposal, particularly in instances where 
a company might have only a handful of placarded shipments during the 
course of the year.'' ILMA stated that RSPA could meet its objectives 
by retaining the current structure of persons required to register and 
``a very modest across-the-board fee increase, would suffice to fully 
fund the HMEP grants program.'' Finally, ILMA did not support the 
exemption provided to farmers.
    The Fertilizer Institute (TFI) also opposes expansion of the 
registrant base to include placarded loads. TFI stated, ``RSPA fails to 
demonstrate a need for more registrants and, in any event, including 
agricultural retailers and others transporting farm inputs as part of 
the registration program contravenes clear Congressional intent 
regarding the scope of the registration program.''
    The Illinois Fertilizer and Chemical Association (IFCA) opposes 
lowering the threshold to any placarded load as an unjustified fee 
increase, stating, ``there is no indication that seasonal shipments of 
smaller, placarded loads in rural communities pose a substantial hazmat 
risk to responders.'' IFCA further stated, ``Most [agricultural] 
retailers also offer or transport placarded loads of pesticides; 
therefore, exempting only anhydrous ammonia nurse tanks from the 
registration program would provide no relief whatsoever for 99% of the 
ag retailers in Illinois.'' RSPA did not propose to except anhydrous 
ammonia nurse tanks except when operated by farmers in direct support 
of their farming operations.
    Other parties favor even greater extension of the registration 
requirement. The Iowa Department of Transportation (IDOT) suggested 
requiring registration by anyone who offers to transport or transports 
a shipment that is required to be marked and/or placarded, including 
marine pollutants, class 9 materials and cryogenics, with the exception 
of farmers. IDOT contends that requiring these persons to register 
would produce sufficient revenues without implementing two fee levels. 
IDOT stated, ``By lowering the registration threshold quantity, more 
offerors and carriers would be required to register. Keep it simple, if 
you offer or transport HM in quantities that require placarding, or the 
marine pollutant mark, or the display of identification numbers on 
placards, white square on point configurations or orange panels you 
must register.'' Phillips Petroleum Company (Phillips) also proposed 
expansion of the registration base to include marine pollutants and 
bulk shipments requiring the hazardous material identification number 
marking.
    Based on its review of comments received in response to the NPRM, 
and the public meetings, RSPA is adopting the proposal to expand the 
base of registrants to each person who offers for transport or 
transports a shipment of hazardous materials for which placarding of a 
bulk packaging, freight container, unit load device, transport vehicle, 
or rail car is required. Expansion of the base of persons required to 
register by including all persons offering or transporting placarded 
loads recognizes the greater risks posed to health and safety or 
property by the transportation of hazardous materials in quantities 
that require placarding. Thus, shippers and carriers involved in the 
shipment of a placarded load of hazardous materials will bear a fair 
share of the financial burden that falls on State and local government 
agencies to develop emergency plans and to train first-on-the-scene 
responders. Also, by requiring all offerors and transporters of 
placarded shipments of hazardous materials to register, RSPA will 
create the most current list of persons engaged in the transportation 
of appreciable shipments of hazardous materials, one of the primary 
intentions of the registration requirement.
    RSPA has provided one exception to this rule for those activities 
of a ``farmer'', as defined in Sec. 171.8 of the HMR, that support the 
farmer's farming operations. However, this is not a blanket exception 
for all farmers from the registration rule. If a farmer offers for 
transportation or transports in commerce a hazardous material that is 
specifically identified in Sec. 5108(a)(1) of the law, or offers for 
transportation or transports a placarded shipment that is not in direct 
support of the farmer's farming activities, that farmer must submit a 
registration statement and pay the required fee.
    The proposals to expand the proposed definition of persons required 
to register to include not only all shipments requiring placarding but 
also those requiring marking, including marine pollutants, class 9 
materials and cryogenics, would not appreciably increase the number of 
persons required to register. Further, such an approach would make what 
was intended to be a simplification of the registration requirements 
more complicated. RSPA has, therefore, chosen not to adopt the 
suggested expansion of the scope of the registration rule.
    The application of generally well understood hazard communication 
criteria for placarding greatly simplifies the matter of whether a 
shipper, carrier, or other person is required to register. 
Simplification of the regulations similarly makes the rule much easier 
to enforce, thereby further assuring a high rate of compliance.

C. Two-Tiered Fee Structure

    In the April 15, 1999 NPRM, RSPA proposed a two-tiered fee schedule 
under which a company meeting the small business criterion for its 
category established by the SBA at 13 CFR 121.201 would pay a smaller 
registration fee than a company that does not meet the SBA criterion. 
The proposal specified that a small business would pay an annual 
registration fee of $300, while a larger business would pay $2,000.
    Many commenters oppose the two-tiered fee structure, advocating an 
increased registration fee for all registrants instead. For example, 
the

[[Page 7302]]

International Warehouse Logistics Association suggested, ``If an 
increase is necessary * * * for the sake of clarity and simplification, 
we would urge a minimal increase in the registration fee for all 
registrants rather than a two-tiered plan.'' Similarly, AWHMT opposes 
the two-tiered fee structure as flawed and difficult to enforce, 
suggesting as a more equitable approach a minimal incremental increase 
in the fee across the board, regardless of the size of the business or 
its hazardous materials operations. IDOT stated that a tiered fee 
program may be more difficult to implement than expected and stated 
that ``Basing it on gross revenue of a company's total operation is 
unfair to say the least. They may have a high gross revenue, but only a 
small percentage is derived from Hazardous Materials activities.''
    The Conference on Safe Transportation of Hazardous Articles, Inc. 
stated that RSPA should simply, ``Determine the total amount necessary 
to be collected and divide it by the number of current and prospective 
registrants under an expanded pool. A two-tiered system would be more 
difficult to enforce, and presumes that smaller companies have a lesser 
impact on transportation safety than larger ones.''
    Other commenters criticized use of the SBA criteria for small 
businesses. Morganite Incorporated stated the Environmental Protection 
Agency categorizes it as a small quantity generator of hazardous waste. 
While its level of revenues and number of employees is not at all 
related to the shipment of hazardous materials, Morganite stated that 
it would be unfair for it to ``be assessed $2000/year for the 
transportation of these occasional small quantities.'' The Canadian 
Trucking Alliance (CTA) similarly argued that basing the registration 
fee ``on a motor carrier's total revenue as opposed to its revenue 
earned transporting hazardous materials does not appear to be 
equitable, although it is clearly administratively simple.'' CTA 
requested that RSPA allow Canadian carriers to use only the revenue 
earned in the United States to determine whether those motor carriers 
are classified as a small business under SBA criteria.
    Several large entities stated that basing registration fee amounts 
on the SBA criteria will require them, in essence, to financially 
subsidize potentially higher-risk, smaller entities. Southwest Solvents 
& Chemicals stated, ``Generally, larger companies are capable and 
devote more personnel, time and money to promoting safety and 
developing proficiency in their operations than do smaller companies.'' 
It further stated, ``Assuming an increase is justifiable, there is 
nothing equitable in imposing on larger businesses a 660% increase in 
fees without asking small businesses to share the load.''
    Phillips commented that the proposed fee increase puts an unfair 
burden for funding the HMEP grants program on larger businesses. 
Phillips stated, ``As it is currently proposed, the two-tier fee 
structure would increase the total amount that Phillips and its 
subsidiaries pay to register from $1,500 to $10,000 annually. * * * 
Here again, the large corporations are being unfairly burdened.''
    Phillips also stated that small businesses are more likely to fail 
to comply fully with the HMR because they do not employ full-time 
regulatory compliance staffs. Phillips and other large entities with 
multiple subsidiaries proposed that a single registration fee should 
cover both a parent company and its subsidiaries. Alternatively, one 
commenter from a large business entity suggested that no more than 
$20,000 should be collected from a family of companies that enjoy 
common equity or ownership.
    Some commenters suggested a third level of registration fees for 
larger entities that offer relatively smaller amounts of hazardous 
materials, or who would be near the dividing line between small and 
larger businesses under SBA criteria. The Utility Solid Waste 
Activities Group suggested adding a mid-level third tier for entities 
who cannot satisfy the SBA criteria for a small business but offer or 
transport ``low volume/low risk hazardous materials.''
    A number of commenters expressed the view that RSPA should not base 
the amount of the registration fee on SBA criteria because that does 
not consider risk appropriately, and it is not one of the factors 
explicitly set forth in the statute. Tower Group International stated:

    Whether a registrant is categorized as a small business or not 
under SBA rules is simply a measure of revenue and employee head 
count. The SBA definition does not consider the volume or type of 
the person's hazardous materials activities. If Congress had 
intended that the SBA's small business criterion be a basis for 
determining the fee, it would have included appropriate language in 
Sec. 5108.

    The International Sanitary Supply Association (ISSA), which opposes 
expansion of the base of registrants, stated that RSPA's two-tier fee 
proposal fails ``to properly consider the criteria that the [law] 
requires it to do. As such, the imposition of a substantially higher 
fee without a finding that these companies present greater hazards 
across the board is inherently inequitable and cannot be supported by 
the ISSA.'' ISSA stated it would support a risk-based alternative such 
as charging a higher fee for Table 1 placarded materials than for Table 
2 placarded materials, and within each category a higher fee assessed 
for greater quantities.
    Air Products and Chemicals Inc. stated that the lack of 
standardization in using SBA criteria for small and larger businesses 
would create confusion and difficulty in enforcement, because 
``companies will have difficulty understanding the Standard Industrial 
Code * * * to recognize whether they meet Small Business Administration 
criteria for a small business.'' It went on to say, ``We believe that 
the proposed two-tier fee schedule may cause misunderstanding with 
current and potential registrants. Also, we doubt whether the 
Department of Transportation has the time and resources to verify the 
size criteria for registrants for enforcement.''
    Some commenters expressed a preference for basing registration fees 
on the number or size of containers or vehicles used to transport 
hazardous materials. The Petroleum Transportation and Storage 
Association stated that it ``believes that the most efficient and 
equitable method to structure a multi-tiered fee system based on risk 
is to assign the fee according to the number of bulk packagings in a 
HAZMAT shipper's fleet.'' The Illinois Fertilizer and Chemical 
Association urged RSPA to ``Apply a graduated fee based on size of 
hazardous material containers,'' suggesting a three-tier level of fees 
triggered by vehicle gross weight, number of rail cars, or a 
combination of both.
    Farmland Industries, Inc. suggested a three-tier fee as follows:

    (1) Persons who offer for transport or transport a hazardous 
material only in vehicles weighing less than 26,001 pounds should 
pay $300.
    (2) Persons who offer for transport or transport a hazardous 
material only in vehicles weighing 26,001 pounds or more should pay 
$500.
    (3) Persons who offer for transport or transport a hazardous 
material by rail, or by rail and in vehicles weighing 26,001 pounds 
or more should pay $700.

    RSPA has carefully considered the comments submitted in response to 
the NPRM, and has weighed them against the objectives declared in the 
April 15, 1999, notice. These objectives required the resulting program 
to: (1) Be simple,

[[Page 7303]]

straightforward, and easily implemented and enforced; (2) Employ an 
equity factor that reflects the differences between the risk imposed on 
the public by the business activities of large and small businesses; 
(3) Ensure the adequacy of funding for the HMEP grants program; and (4) 
Be consistent with the law. While some of the recommendations made in 
the comments might come closer to satisfying one of these objectives, 
RSPA remains convinced that its proposal will most adequately address 
all four of them.
    RSPA does not agree with the commenters opposing the two-tiered fee 
structure. RSPA considers the proposal to enlarge the definition of 
those persons required to register and simultaneously to increase the 
required fee for the larger registrants to be a reasonable distribution 
of the costs of the program among the varying types and sizes of 
businesses that contribute to the need for trained emergency response 
personnel. The expansion of the definition to include all offerors and 
transporters of placarded shipments of hazardous materials will most 
directly affect relatively small businesses that use smaller bulk 
containers or offer to transport or transport placarded shipments of 
less than 5,000 pounds in non-bulk packages. Requiring these entities 
to register recognizes that their activities contribute to the need for 
enhanced emergency response programs. The imposition of a larger fee of 
$2,000 on persons that do not meet the criteria for a small business, 
most of whom have been required to register since 1992, places a 
greater, but not unduly burdensome, share of these costs on companies 
most likely to be offering to transport or transporting large volumes 
of hazardous materials.
    RSPA spent considerable time and effort evaluating several methods 
of apportioning the fee among registrants according to various 
approximations of the risk imposed. We considered factors such as Table 
1 and Table 2 materials, the type and size of containers (including 
vehicles), and the number of shipments offered or transported. We 
concluded that trying to reasonably distinguish between distinct levels 
of imposed risk would require the imposition of a complicated system 
that would necessarily involve significant recordkeeping burdens on the 
regulated public. Persons interested in a more detailed analysis of 
such a risk-based proposal may consult Docket HM-208B, RSPA's 1995 
proposal to base a four-level fee structure on risk factors.
    Further, we are convinced that even the simplest of the suggested 
alternative fee structures would impose significant cost burdens. For 
example, the creation of an intermediate fee level for registrants that 
do not meet the criteria for a small business but engage in limited 
hazardous materials activities could impose a greater expense on the 
registrant to maintain the necessary records to prove its level of 
activity than the cost of the $2,000 fee. Similarly, the suggestion 
from the Canadian Trucking Alliance that only revenue earned in the 
United States be used to determine a foreign company's business size 
(for those businesses for which the SBA size standard is the annual 
revenue) would involve foreign carriers in complicated and detailed 
record-keeping.
    In response to the commenters who supported retention of a flat fee 
for all persons required to register, we note that, if the base of 
registrants is not expanded and the current number of annual 
registrants is maintained, a flat fee of approximately $555 (including 
a processing fee of $25) would be necessary to collect $14.3 million in 
grant monies. If the universe of registrants is expanded to 
approximately 45,000 persons, a flat fee of $345 (including a $25 
processing fee) would be necessary to meet that collection amount. 
Given Federal directives to consider the needs of small businesses in 
establishing fees, we cannot justify an increase in the fee required of 
small businesses when clear alternatives are available.
    RSPA also disagrees with commenters who stated that RSPA's proposed 
use of the SBA criteria: (1) favors big businesses over small 
businesses; (2) is not one of the determinants allowed by 49 U.S.C. 
5108(g)(2)(A); and (3) would be difficult for potential registrants to 
understand and apply to their business operations. We believe that our 
goals are best met by establishing a two-tiered fee schedule under 
which a person not meeting the criterion established for it by the SBA 
at 13 CFR 121.201 pays a larger fee than that required for a small 
business. This regulatory approach provides fee levels that reflect a 
key factor contained in 49 U.S.C. 5108(g)(2)(A), specifically, the 
relative size of a business.
    In addition, this approach generally addresses the different levels 
of risk posed by small businesses that make fewer and smaller shipments 
of hazardous materials as compared to larger businesses that annually 
manufacture, offer, or transport thousands of tons of hazardous 
materials. Five of the specific factors permitted by 49 U.S.C. 5108 
(g)(2)(A) as fee determinants are indicators of the level of risk 
imposed by the registrants, and two are indicators of the size of the 
business. Use of the SBA standards for differentiating small businesses 
offers a simple and direct factor that is commonly used and established 
by Federal regulation. The use of alternate size criteria would impose 
additional burdensome, and significant recordkeeping requirements on 
most registrants.
    In relation to the comments suggesting that a limit be placed on 
the number of registrations required from corporately connected 
subsidiary companies, RSPA points out that the law requires 
registration of each ``person'' that engages in certain activities, and 
that the definition of ``person'' is governed by Section 1 of Title 1 
of the U.S. Code. A corporation that elects the option of forming 
itself into more than one person for whatever reason also assumes 
certain legal responsibilities for each of those persons, including the 
requirement to register.
    Many commenters believe that use of the SBA size criteria would be 
confusing to registrants. However, most businesses are already aware of 
the Standard Industrial Classification (SIC) code applicable to them or 
can easily determine that code from the list published by the SBA on 
its Internet web site at the following address: ``http://
www.sbaonline.sba.gov/regulations/siccodes/''. This list also contains 
the size standard established for each SIC code. With few exceptions, 
the specified standard is either annual receipts (as defined in 13 CFR 
121.104) or maximum number of employees (as defined in 13 CFR 121.106). 
A company that considers the size determinant for its industrial code 
to be improper can request SBA to reconsider the standard by writing to 
the Assistant Administrator for Size Standards, Small Business 
Administration, 409 3rd Street, S.W., Washington, D.C. 20416. The SBA 
web site also has a link (``http://www.osha.gov/oshstats/sicser.html'') 
to the Occupational Safety and Health Administration Standard 
Industrial Classification search engine for persons needing a fuller 
description of the definition of the businesses included within 
particular SIC codes.
    For these reasons and based on our review of comments received in 
response to the NPRM and at the public meetings, we believe that the 
proposed two-tiered fee schedule based on SBA criteria is the most 
equitable, simple, and enforceable method for determining and 
collecting registration fees. Therefore, RSPA is adopting, as proposed, 
the two-tiered fee schedule

[[Page 7304]]

based on SBA criteria for small businesses.
    With regard to use of SIC codes, RSPA notes that SBA recently 
issued a notice of proposed rulemaking (64 FR 57188, October 22, 1999) 
to amend its size regulations in 13 CFR 121.201 by establishing small 
business size standards for industries defined under the North American 
Industry Classification System (NAICS). In addition, SBA proposed that 
the new size standards be effective for Fiscal Year 2001, which begins 
October 1, 2000. SBA estimates that relatively few firms would gain or 
lose small business status as a result of this rule. SBA intends that, 
in establishing a new table of size standards, firms that are now 
eligible for Federal small business programs will remain eligible to 
the maximum extent practicable.
    A review of the proposed NAICS table of size standards compared to 
industries identified by SIC codes in RSPA's regulatory evaluation 
revealed few instances in which an entity may lose its status as a 
small business.
    The two-tiered fee schedule distributes registration fees according 
to a well-established measurement of business size and ensures the 
collection of sufficient funds to support the HMEP grants program at an 
enhanced level. RSPA will achieve its goal of raising $14.3 million 
annually (exclusive of funds collected for administrative processing), 
by collecting a fee of $300 (which includes a $25 processing fee) from 
an estimated 43,500 registrants that are small businesses and a fee of 
$2,000 (which includes a $25 processing fee) from an estimated 1,500 
registrants that do not meet the criteria for a small business. If the 
number of estimated new registrants is significantly larger than RSPA's 
current estimate, RSPA will consider adjusting the registration fees in 
subsequent years to avoid collecting an annual amount in excess of the 
$14.3 million required for more appropriate funding of the HMEP grants 
program.

D. Clarification of ``Offeror'' and ``Shipper''

    Some commenters, such as PMAA, Petroleum Transportation and Storage 
Association (PTSA), AWHMT, and several public meeting speakers, 
requested that RSPA further clarify and define the terms ``offeror'' 
and ``shipper.'' These commenters are particularly concerned about a 
person's name appearing on the shipping paper and containing the 
information required by Secs. 172.202, 172.203, and 172.204. The 
commenters' concern involves an interpretation [57 FR 48739-41 (October 
28, 1992)] by RSPA on activities which the agency considers as indicia 
of an entity's direct role in causing hazardous materials to be 
transported in commerce. These commenters include convenience store 
operators whose names appear on shipping papers when they order bulk 
quantities of gasoline for resale at their convenience stores. The 
referenced interpretation (No. 92-1-RSPA) was issued by RSPA's Chief 
Counsel in response to a request from PMAA and QTI Service Corporation. 
This interpretation references two previous interpretations (Nos. 88-1-
RSPA and 89-1-RSPA) issued by RSPA's Chief Counsel's Office in 1988 and 
1989 in response to requests from the National Tank Truck Carriers, 
Inc., and published in the Federal Register on February 26, 1990 (55 FR 
6760-62).
    PMAA stated that RSPA's instructions and DOT Form F 5800.2 for 
registration year 1999-2000 contain a definition of ``offeror'' that is 
in conflict with RSPA's official interpretation. RSPA's instructions 
state, `` If your company's name appears on the shipping papers as the 
shipper or as one of the shippers, you have assumed responsibility as 
an offeror and must therefore register.'' PMAA pointed out that ``Under 
some state tax laws, the marketer [who orders a shipment of gasoline] 
is named as the shipper on the shipping papers, since the state 
requires the marketer's name to be listed since he is the owner of the 
product.'' PMAA requested RSPA rewrite the registration instructions to 
clarify that the company's name appearing on the shipping paper as the 
``shipper'' does not automatically require registration as an 
``offeror.''
    PTSA also requested clarification of ``offeror'' and recommended:

    RSPA should clarify the term offeror to include only those 
functions that relate to the physical control of hazardous material 
shipments. At the very least, RSPA should allow petroleum marketers 
who hire common carriers to include their company name on the 
shipping papers as the billing party without rising to the level of 
an offeror. This clarification makes sense because the common 
carrier is the only one in the position to comply with the hazardous 
material regulations since it has sole control over the physical 
shipment.

    The AWHMT disagrees with PMAA and PTSA and states, ``In our view, 
if a person's name appears on a shipping paper, the person has engaged 
in a commercial hazmat transaction and the person is subject to the HMR 
and if, for purposes of this rulemaking, the shipping paper causes to 
be transported hazardous materials which are placarded, the person 
should be'' required to pay a registration fee.
    RSPA disagrees with PTSA's position that only those functions 
normally performed by an offeror that ``relate to the physical control 
of hazardous materials shipments'' are appropriate in determining 
whether a person is an offeror of hazardous materials. All of the 
functions enumerated in Interpretation No. 92-1-RSPA continue to be 
valid factors for determining whether a person is a ``shipper'' or 
``offeror.'' These functions, also printed in the annual registration 
brochures, include, but are not limited to, selection of the packaging 
for a regulated hazardous material, physical transfer of hazardous 
materials to a carrier, determining hazard class, preparing shipping 
papers, reviewing shipping papers to verify compliance with the HMR or 
their international equivalents, signing hazardous materials 
certifications on shipping papers, placing hazardous materials markings 
or placards on vehicles or packages, and providing placards to a 
carrier.
    RSPA has carefully considered PMAA's request to clarify the advice 
given in the registration brochure extending the term ``offeror'' to 
persons whose name appears as the shipper or one of the shippers on the 
shipping paper. The 1996-97 registration brochure added a statement to 
the discussion of the term ``offeror'' that if a company's name appears 
on the shipping papers as the shipper or as one of the shippers, that 
company has assumed responsibility as an offeror and is therefore 
required to register. This does not contradict the 1992 interpretation 
and was intended to clarify the circumstances in which RSPA considers a 
party to a transaction to be one of the offerors. In the 1992 
interpretation and the two related 1988 and 1989 interpretations 
(published in the Federal Register in 1990), RSPA emphasized the 
principle that more than one person may perform one or more of the 
functions of an offeror in the course of a transaction. PMAA and other 
commenters now allege that certain persons who do not engage in any 
activity of an offeror nevertheless are listed as the shipper or one of 
the shippers on the shipping papers in compliance with state tax or 
other regulatory requirements.
    RSPA agrees that the act of ordering hazardous materials is not 
included within the meaning of ``causes to be transported'' and, in and 
of itself, does not require registration. Beginning in Registration 
Year 2000-2001, RSPA, as a matter of policy, will no longer consider 
the presence of a person's name on the shipping paper as the shipper or 
one of the shippers as

[[Page 7305]]

conclusive evidence of whether that person is required to register. The 
registration brochure will be revised to eliminate that statement. 
Therefore, a person who purchases a hazardous material, has his or her 
name on the shipping paper as the shipper, and performs no ``offeror'' 
functions will not be required to register. However, RSPA notes that, 
most commonly, a person who is named as a ``shipper'' on a shipping 
paper performs one or more of the functions of an offeror and is 
required to register.
    Some commenters expressed concern about applicability of the 
requirement to register to persons who return ``empty'' tank cars to 
the original shipper or to any other location. Commenters indicated 
that this requirement may have a significant adverse impact on a number 
of persons, especially petroleum marketers. According to commenters, 
many petroleum marketers receive a significant part of their propane 
supplies by tank car. Commenters argued that payment of the 
registration fee constitutes a significant cost of doing business and 
could absorb all of the savings realized by transporting a large volume 
of propane by tank car.
    RSPA has long held that performance of functions necessary to 
assure the safe return of a tank car or cargo tank motor vehicle 
containing residue is subject to the HMR and clearly within the meaning 
of ``offering'' a hazardous material for transportation in commerce. 
When a propane tank car is unloaded (but not cleaned and purged), the 
petroleum marketer meets RSPA's criteria for an ``offeror'' when it 
returns the ``empty'' tank car to a railroad for return to the original 
shipper or another party. It is not uncommon for an ``empty'' tank car 
to retain several hundred gallons of product, which in the case of 
propane is likely to be extremely volatile. RSPA considers this issue 
to be settled and no comment submitted to the docket concerning this 
matter causes the agency to reconsider its position.

E. Registration Number Display

    The American Trucking Associations (ATA) asked RSPA to remove the 
requirement for a motor carrier to 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 truck and truck tractor as specified in Sec. 107.620 (b). 
ATA stated:

    Other modes of transportation and shippers are merely required 
to retain the registration certificate at their principal place of 
business. This is a more reasonable approach, since the registration 
certificate does not measure a motor carrier's fitness to transport 
hazardous materials. It merely identifies who has or has not paid a 
fee to RSPA. As this is merely a record keeping requirement to prove 
payment of the fee, a large portion of enforcement should be 
accomplished during safety and compliance reviews at the motor 
carrier's place of business instead of at the roadside during a 
driver/vehicle inspection.

    Roadside enforcement is a key element of enforcement of the 
registration rule. Keeping records only at the motor carriers's place 
of business instead of in the motor vehicle where they are readily 
accessible for inspection would adversely impact enforcement efforts by 
Federal motor carrier inspectors and their partners in the States. A 
single day of roadside inspections enables inspectors to efficiently 
verify the registration status of a large number of carriers. 
Therefore, RSPA is not changing the requirement that a copy of the 
Certificate of Registration or another document bearing the 
registration number identified as the ``US DOT Hazmat Reg. No.'' be on 
board each truck and truck tractor.

F. Constitutionality of Program

    PMAA asserts that the registration fee is a ``tax'' and 
constitutionally deficient. It claims that the registration fee is 
unconstitutional because the ``originations'' clause in Article I 
Sec. 7 of the Constitution provides that ``[a]ll bills for raising 
revenue shall originate in the House of Representatives.'' According to 
PMAA, the 1990 amendments (as enacted in the Hazardous Materials 
Transportation Uniform Safety Act of 1990 (HMTUSA), Pub. L. 101-615) 
``originated as a bill in the Senate.'' Next, PMAA claims that, because 
Article I Sec. 8 of the Constitution provides that ``Congress shall 
have power to lay and collect taxes,'' the authority to set and collect 
a registration fee has been improperly delegated to DOT. Third, PMAA 
contends that the registration fee violates the ``equal protection 
component of the Fifth Amendment due process'' because it is not 
``rationally related to a legitimate government objective'' and it 
``unfairly discriminates against small transporters.''
    The Supreme Court has made it clear that the ``originations'' 
clause in Article I Sec. 7 applies only to ``a statute that raises 
revenue to support Government generally.'' United States v. Munoz-
Flores, 495 U.S. 385, 398 (1990). The Court cited its prior decision 
that ``revenue bills are those that levy taxes in the strict sense of 
the word, and are not bills for other purposes which may incidentally 
create revenue,'' so that ``a statute that creates a particular 
governmental program and that raises revenue to support that program'' 
is not a ``bill for raising revenue'' within the meaning of the 
originations clause. 495 U.S. at 397, 398. HMTUSA created a specific 
governmental program, the HMEP grants program, and devised the 
registration fee to support that specific program. Under the Supreme 
Court's long-standing interpretation, the registration fee is not 
subject to the originations clause, and it is unnecessary to undertake 
the sometimes difficult task of determining the body of Congress in 
which a particular statutory provision originated. Moreover, cases such 
as United States v. Sperry Corp., 493 U.S. 52, 66 (1989), and United 
States v. Munoz-Flores, 863 F.2d 654, 660-61 (9th Cir. 1988), rev'd on 
other grounds, 495 U.S. 385 (1990), discredit PMAA's theory that the 
number of the bill enacted into law determines the house in which the 
specific provision in the bill originated. In these cases, the court 
analyzed where the specific fee provision actually originated. 
According to AWHMT, the registration fee was first proposed in a House 
bill, which the Senate then substituted ``for the Senate bill and 
returned the bill to the House with a Senate number.''
    The Supreme Court has also clarified that a single, straightforward 
principle governs Congress's power to delegate to an administrative 
agency the authority to set a fee, regardless of whether the ``fee'' is 
found to be ``a form of taxation because some of the administrative 
costs paid by the regulated parties inure to the benefit of the public 
rather than directly to the benefit of those parties.'' Skinner v. Mid-
America Pipeline Co., 490 U.S. 212, 223 (1989). Under that principle, 
delegation is permitted ``so long as Congress provides an 
administrative agency with standards guiding its actions such that a 
court could ascertain whether the will of Congress has been obeyed.'' 
490 U.S. at 218 (internal quotation marks omitted). Section 5108 
contains clear standards, which RSPA has followed in developing this 
rule, with respect to both the amount of the registration fee and the 
persons that may be required to register and pay the fee. RSPA notes 
that Sec. 5108(g)(2) provides that the Secretary may set the amount of 
the registration fee based on the amount needed to carry out the HMEP 
grants program. That is exactly the basis on which RSPA has determined 
the total amount to be raised in registration fees. With the total 
amount set in this fashion, and the

[[Page 7306]]

permissible $250-$5,000 range of the registration fee specified, there 
are sufficient standards in the law against which to measure RSPA's 
actions.
    As explained in the NPRM, RSPA also believes that the registration 
fee should be ``fair'' in terms of having ``an equity factor that 
reflects the differences between the risk imposed on the public by the 
business activities of large and small businesses,'' and also being 
``simple, straightforward, and easily implemented and enforced.'' 64 FR 
at 18790. RSPA does not read Sec. 5108(g)(2) as requiring a single fee 
for all registrants nor, however, does it believe that it must provide 
perfect equity among all persons that are required to register. The 
Supreme Court has commented that the due process and equal protection 
clauses do not guarantee perfection in treatment, but rather protect 
against governmental actions ``that are downright irrational.'' Hudson 
v. United States,__U.S.__,118 S.Ct. 488, 495 (1997). The use of 
registration fees to fund training and planning for emergency response 
to a hazardous material incident in transportation is clearly a 
rational governmental action. Congress perceived a nationwide need and 
fashioned a nationwide program to address that need. The fact that all 
businesses, including both small and ``large, national transporters,'' 
pay local taxes that may (or may not) be used by their local 
communities to train and plan for emergency response to transportation 
incidents involving hazardous materials is not a constitutional 
infirmity in a program that uses a national registration fee program to 
benefit all communities that respond to hazardous materials incidents 
in transportation. RSPA sees no discrimination against small businesses 
that pay the minimum fee (under the current program) or (under the 
program applicable after July 1, 2000) a significantly lower 
registration fee than a company that is not a small business. As 
discussed elsewhere (see Section III.C), the dividing line between a 
small business that will pay a $300 fee and a larger one that will pay 
a $2,000 fee is based on the size determinations of the Small Business 
Administration, which, even if not perfect, are appropriate bases for 
apportioning the costs of funding the HMEP grants program.

G. Statutory Language and Intent

    PMAA and others argued that RSPA's proposal departs from the 
statutory language and intent. PMAA stated that Congress meant to apply 
the registration fee only to ``large, national hazmat offerors and 
transporters'' who are directly involved in interstate commerce, and 
not to an offeror or carrier of ``any placarded load,'' because that 
criterion is not set forth in Sec. 5108(a)(1). It also contended that 
the proposed exception for farmers is a political ``call'' which is not 
authorized in the statute and violates Article I Sec. 8 of the 
Constitution. The Agricultural Retailers Association (ARA) acknowledged 
that the statute allows RSPA the discretion to require ``any hazmat 
carrier'' to register, but it ``believes Congress contemplated this to 
operate on a carrier-by-carrier basis, and not to operate in an across-
the-board fashion.'' ARA urged RSPA to explain Congress's intent in 
setting the mandatory registration criteria in Sec. 5108(a)(1) and the 
authority in Sec. 5108(a)(2) for RSPA to require additional persons to 
register. Senator Conrad Burns (R-MT) expressed concern that the 
proposed rule contravenes the 1992 technical correction that added the 
words ``except in a bulk package'' to the mandatory registration 
provision now codified at Sec. 5108(a)(1)(E), because it will require 
persons other than farmers who offer or transport nurse tanks with a 
capacity less than 3,500 gallons to register. PMAA also agreed with 
other commenters who stated that RSPA should not base the amount of the 
registration fee on business size instead of the ``eight specific 
factors'' listed in Sec. 5108(g)(2)(A), and it urged RSPA to wait until 
congressional reauthorization of the appropriations language in 
Sec. 5127 before increasing the registration fee.
    RSPA believes that Sec. 5108(a)(2) clearly reflects Congress's 
intent to allow the Secretary to require any person ``transporting or 
causing to be transported hazardous material in commerce'' to pay the 
registration fee. As reported by the House Committee on Energy and 
Commerce in April 1990, H.R. 3520 would have required all offerors and 
transporters of hazardous materials (among others) to register and 
allowed the Secretary to ``exempt any class or category of persons from 
the requirement of this paragraph.'' H.R. Rep. No. 101-444, Part 1, at 
80 (Apr. 3, 1990). In contrast, the Senate bill reported in August 1990 
contained a provision requiring the Secretary to ``initiate a 
rulemaking proceeding concerning the need to establish annual or other 
registration requirements for persons or any class or category of 
persons who transport, ship, or cause to be transported or shipped in 
commerce hazardous materials * * *'' S. Rep. No. 101-449 (Aug. 30, 
1990), at 1990 U.S.C.C.A.N. 4595, 4623. These two approaches evolved 
into the provisions in HMTUSA specifying five categories for which 
registration is mandatory plus the authority for the Secretary to 
require other persons to register. Congress clearly left to the 
Secretary's discretion the determination of which additional categories 
of persons would be required to register and pay a registration fee, 
including the creation of exceptions from these categories. This 
conclusion is fully consistent with the direction in Sec. 5103(b)(1) 
for the Secretary to ``prescribe regulations for the safe 
transportation of hazardous materials ``in intrastate * * * commerce'' 
and the broad definition of ``commerce'' in Sec. 5102(l). Accordingly, 
RSPA has applied the registration requirement to purely intrastate 
carriers since 1992. See 57 FR 30620, 30622, 30630 (July 9, 1992).
    RSPA does not believe that Congress somehow intended the agency to 
require additional persons to register under Sec. 5108(a)(2) ``on a 
carrier-by-carrier basis,'' as ARA suggests. Nor does RSPA agree that 
an exception for farmers from the additional categories of persons to 
be required to register is irrational, improper, or inconsistent with 
the will of Congress as expressed in the 1992 technical correction that 
added the words ``except in bulk packagings'' to current 
Sec. 5108(a)(1)(E). The technical correction enacted in Public Law 102-
508 removed a contradiction between two categories for which 
registration was mandatory in HMTUSA. As enacted in 1990, one provision 
of HMTUSA required a person to register if it offers or transports 
hazardous materials in a bulk packaging, container, or tank that has a 
capacity of 3,500 gallons or more. However, another provision of HMTUSA 
required registration by a shipper or carrier of any shipment of at 
least 5,000 pounds of a class of hazardous materials for which 
placarding of a vehicle, rail car, or freight container is required 
under RSPA's regulations. This meant that a shipper or carrier of 
hazardous materials (such as anhydrous ammonia) in a nurse tank or 
other bulk packaging with a 1,000-gallon capacity was covered by the 
latter provision (because the shipment weighed more than 5,000 pounds) 
but left out of the former provision. To eliminate this inconsistency, 
the law was clarified by adding the phrase ``except in a bulk 
packaging'' to the latter criterion. The 1992 technical change modified 
the language related to statutorily-mandated registrations and was not 
related to additional registrations that the Secretary could require by 
regulation.

[[Page 7307]]

Nothing in P.L. 102-508 or its legislative history restricts the 
Secretary's discretion to require additional persons to register under 
Sec. 5108(a)(2).
    In summary, this regulation is consistent with the Secretary's 
Sec. 5108(a)(2) authority to require additional persons to register and 
with the Secretary's Sec. 5108(g)(2) authority to impose an annual fee 
based on at least one of several criteria. These criteria include 
several that support this regulation: (1) The type of hazardous 
material transported or caused to be transported; (2) the amount of 
such hazardous material; (3) the threat to property, individuals, and 
the environment from an accident or incident involving such hazardous 
materials; and (4) other factors the Secretary considers appropriate.

H. FY 2000 Hazardous Materials Program Funding

    In the NPRM, RSPA noted that the Administration's Fiscal Year 2000 
Budget and Hazardous Materials Transportation Reauthorization proposals 
to Congress include legislative authority to fund RSPA's entire 
Hazardous Materials Safety Program from the registration fee program, 
beginning with the fourth quarter of fiscal year 2000.
    Several commenters expressed opposition to RSPA funding the entire 
Hazardous Materials Safety Program from the registration fee program. 
The Chemical Manufacturers Association (CMA) stated, ``CMA believes 
that the Hazardous Materials Safety Program (excluding the registration 
program) should continue to be funded through general purpose funds; 
user fees should not be assessed for a program that benefits the 
general public. CMA also questions whether user fees of that scope 
could be assessed in a fair and equitable manner. CMA's willingness to 
support RSPA's proposals in this NPRM does not extend to funding the 
entire Hazardous Materials Safety Program through the fees collected 
from the registration program.''
    The American Petroleum Institute (API) is also opposed to this 
proposal to Congress. API stated: ``API does not believe that user fees 
are the appropriate method to fund the hazardous materials 
transportation program as its reason for existing is by design, to 
protect the public against risks to life and property that may result 
from the transportation of hazardous materials.''
    The Association of American Railroads (AAR) expressed its 
opposition to funding RSPA's Hazardous Materials Safety Program through 
registration fees, and stated, ``AAR has consistently opposed requiring 
the regulated community to fund the hazardous materials program. That 
position extends to using registration fees to pay for RSPA's hazardous 
materials program.''
    The Sulfur Institute expressed its concern about possibly funding 
RSPA's hazardous materials program from registration fees and believed 
the proposal needed more clarification to reduce potential confusion.
    The proposal to fund RSPA's entire hazardous materials safety 
program from the registration fee program is unrelated to this 
rulemaking. The reauthorization proposal is currently pending in 
Congress, but the FY 2000 budget does not include fourth quarter 
funding of the entire program through registration fees. If Congress 
takes action on the reauthorization proposal, RSPA will take 
appropriate action.

IV. Rulemaking Analysis and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and, therefore, was reviewed by 
the Office of Management and Budget. This final rule is considered 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). A regulatory evaluation is 
available for review in the public docket. This final rule is intended 
to collect annual registration fees in the amount of $14.3 million to 
support the HMEP grants program. Because Federal hazardous materials 
transportation law mandates the establishment and collection of fees, 
the discretionary aspects of this rulemaking are limited to setting the 
amount of the fees within the statutory range for each person subject 
to the registration program, and to extending the registration 
requirements to persons who transport or cause the transportation of 
hazardous materials but who are not specifically required to register 
by law. The increased fees are not related to the operational cost of 
RSPA's hazardous materials safety program. 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 preparedness 
and response services provided by public sector resources. The fees are 
also related to expenses incurred by State, Native American tribal, and 
local governments in carrying out hazardous materials emergency 
preparedness and response activities.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not adopt any regulation that:
    (1) Has 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;
    (2) Imposes substantial direct compliance costs on State and local 
governments; or
    (3) Preempts state law.
    Therefore, the consultation and funding requirements of Executive 
Order 13132 do not apply.

C. Executive Order 13084

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each 
agency to analyze proposed regulations and assess their impact on small 
businesses and other small entities to determine whether the proposed 
rule is expected to have a significant impact on a substantial number 
of small entities. Based on our assessment in the accompanying 
regulatory evaluation, and the absence of contradictory information 
submitted to the docket during the public comment period, I certify 
that the requirements adopted in this final rule are applicable to a 
substantial number of small businesses, but that the economic impact on 
these small businesses will not be significant.
Objectives and Legal Basis for the Final Rule
    The goal of this rulemaking is to increase annual funding for the 
national Hazardous Materials Emergency Preparedness (HMEP) grants 
program from the current level of approximately $6.8 million to $14.3 
million. Federal hazardous materials transportation law (49 U.S.C. 
5108) directs the Secretary of Transportation to prescribe regulations

[[Page 7308]]

for the filing of a registration statement, and payment of an annual 
fee, by each person transporting or causing to be transported in 
commerce: (1) A highway-route controlled quantity of Class 7 
(radioactive) materials; (2) More than 55 pounds of a Division 1.1, 
1.2, or 1.3 (explosive) material in a motor vehicle, rail car, or 
freight container; (3) A package containing more than one liter of a 
hazardous material designated as extremely toxic by inhalation (Zone 
A); (4) A hazardous material in a bulk packaging, container, or tank 
with a capacity equal to or greater than 3,500 gallons for liquids or 
gases, or more than 468 cubic feet for solids; or (5) A shipment in 
other than a bulk packaging of 5,000 pounds or more gross weight of a 
class of hazardous materials for which placarding of a vehicle, rail 
car, or freight container is required. In addition, Sec. 5108 permits 
the Secretary to extend registration requirements to persons who: (1) 
Transport or cause to be transported hazardous materials in commerce 
but do not engage in the activities listed above; or (2) Manufacture, 
fabricate, mark, maintain, recondition, repair, or test packagings that 
the persons represents, marks, certifies, or sells for use in 
transporting in commerce hazardous materials. Section 5108 directs the 
Secretary to impose and collect an annual fee of between $250 and 
$5,000 from each person required to prepare and file a registration 
statement. Since 1992, RSPA has chosen to require registration only by 
those persons under a statutory obligation to do so, and to assess the 
minimum registration fee of $250 (plus $50 for processing).
    Under the current regulations, the approximately 27,000 persons 
that register and pay the fee of $250 generate annually funds in the 
amount of $6.8 million. As indicated elsewhere in this preamble, that 
$6.8 million is inadequate to meet funding levels necessary to carry 
out critical elements ($7.8 million for training grants, and $5 million 
for planning grants) of Sec. 5116 of the law at the levels intended by 
Congress. The means adopted in this final rule for collecting 
sufficient monies to adequately fund the HMEP grants program is 
determined to be the best of all evaluated alternatives. This is 
particularly the case with regard to the potential impact on small 
businesses.
Identification of Potentially Affected Small Entities
    Unless alternative definitions have been established by the agency 
in consultation with the Small Business Administration (SBA), the 
definition of ``small business'' has the same meaning as under the 
Small Business Act. Since RSPA has established no such special 
definition, we employ the thresholds established by SBA and codified at 
13 CFR 121.201.
    Expanded Scope of Registration Rule. As noted in the preamble to 
this rule and the associated regulatory evaluation, RSPA anticipates an 
additional 15,000 to 18,000 persons will be required to register each 
year, with all but 500 of those persons being small businesses. Of this 
expanded base of registrants, RSPA estimates that potentially as many 
as 7,000 dealers of refined petroleum products (residential fuel oil, 
diesel fuel, propane, gasoline, etc.) comprise the single greatest 
segment of industry engaged in the transportation of hazardous 
materials that will now be required to prepare and file a registration 
statement and pay the required fee. Essentially all of these newly 
affected entities (a substantial number) are thought to meet the 
applicable SBA criteria for a small business, thereby subjecting them 
to an annual fee of $300 (including a $25 processing fee).
    Based on RSPA's assessment of generally available information, we 
believe the following is a reasonable generalization of the scope of 
operations for some of the smaller of small businesses engaged in the 
distribution of petroleum products. For liquid petroleum products, we 
considered a theoretical marketer operating three small cargo tank 
motor vehicles for an average annual delivery to residences of 2 
million gallons of distillate number 2 (home heating oil). For 
liquefied gases, we considered a theoretical marketer operating three 
small cargo tank motor vehicles for an annual delivery to residences of 
400,000 gallons of consumer grade propane.
    For the smaller marketer of liquid petroleum products, RSPA notes 
that over the five-year period between 1994-1998, the national average 
price per gallon by all sellers of distillate number 2 to residences 
(excluding tax) ranged from $0.852 to $0.989. (Source: Energy 
Information Administration, Annual Energy Review, All Sellers Sales 
Prices for Selected Petroleum Products, 1983-1998). With sales of 2 
million gallons per year, the business would generate annual revenues 
of at least $1.7 million. Given this scenario, the $300 registration 
fee represents 0.000176% of sales, which is an amount that should not 
have a significant impact on the viability of the business. In fact, it 
is more reasonable to expect that rather than absorbing the $300 fee as 
overhead, the fuels dealer would pass this cost on to the ultimate 
consumer. Of 2 million gallons sold, the $300 fee represents an 
additional cost per gallon of $0.00015, or an increased cost to the 
consumer of $0.02 on a delivery of 150 gallons of distillate number 2. 
It is unlikely that a consumer would choose an alternate source of 
energy on the basis of such a price increase.
    For the smaller marketer of liquefied gas products, RSPA notes that 
over the five-year period between 1994-1998, the national average price 
per gallon by all sellers of consumer grade propane (excluding tax) 
ranged from $0.766 to $0.886. (Source: Energy Information 
Administration, Annual Energy Review, All Sellers Sales Prices for 
Selected Petroleum Products, 1983-1998). With sales of 400,000 gallons 
per year, the business would generate annual revenues of at least 
$306,000. Given this scenario, the $300 registration fee represents 
0.001% of sales, an amount that should not have a significant impact on 
the viability of the business. In fact, it is more reasonable to expect 
that rather than absorbing the $300 fee as overhead, the propane 
marketer would pass this cost on to the ultimate consumer. Of 400,000 
gallons sold, the $300 fee represents an additional cost per gallon of 
$0.00075, or an increased cost to the consumer of $0.11 on a delivery 
of 150 gallons of propane. It is unlikely that a consumer would choose 
an alternate source of energy on the basis of such a price increase.
Alternate Requirements for Small Businesses
    The Regulatory Flexibility Act suggests that it may be possible to 
establish exceptions and differing compliance standards for small 
business and still meet the objectives of the applicable regulatory 
statutes. RSPA believes it has met that goal through the adoption of a 
two-tier fee schedule in which a small business must pay an annual fee 
of $300 (including a $25 processing fee) while persons that do not meet 
SBA criteria for a small business must pay an annual fee of $2,000 
(including a $25 processing fee).
Conclusion
    For small businesses, the cost of compliance with the requirement 
adopted in this final rule is so little that RSPA is confident that it 
will not have a significant impact on their ability to continue to 
successfully conduct operations related to the transportation of 
placarded shipments of hazardous materials. Based on its analysis, RSPA 
determined that although the requirement adopted in this final rule 
applies to a substantial number of small businesses, its economic 
burden is not

[[Page 7309]]

significant, even for the smaller of the universe of affected small 
businesses.

E. Unfunded Mandates Reform Act of 1995

    This final rule will not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It will not result in costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector. 
This final rule is the least burdensome alternative that achieves the 
objectives of the rule.

F. Paperwork Reduction Act

    Under 49 U.S.C. 5108(i), reporting and recordkeeping requirements 
pertaining to the registration rule are specifically excepted from the 
information management requirements of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.).

G. Impact on Business Processes and Computer Systems

    We do not want to impose new requirements that would mandate 
business process changes when the resources necessary to implement 
those requirements would otherwise be applied to ``Y2K'' or related 
computer problems. This final rule does not mandate business process 
changes or require modifications to computer systems. Because this rule 
does not affect organizations' ability to respond to those problems, we 
are not delaying the effectiveness of the requirements.

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.

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, 49 CFR part 107 is amended as 
follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

Subpart G--Registration of Persons Who Offer or Transport Hazardous 
Materials

    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. Section 107.601 is revised to read as follows:


Sec. 107.601  Applicability.

    (a) The registration and fee requirements of this subpart apply to 
any person who offers for transportation, or transports, in foreign, 
interstate or intrastate commerce--
    (1) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec. 173.403 of this chapter;
    (2) More than 25 kg (55 pounds) of a Division 1.1,1.2.or 1.3 
(explosive) material (see Sec. 173.50 of this chapter) in a motor 
vehicle, rail car or freight container;
    (3) 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 the 
criteria for ``hazard zone A,'' as specified in Secs. 173.116(a) or 
173.133(a) of this chapter);
    (4) A shipment of a quantity of hazardous materials in a bulk 
packaging (see 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;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
pounds) gross weight or more of one class of hazardous materials for 
which placarding of a vehicle, rail car, or freight container is 
required for that class, under the provisions of subpart F of part 172 
of this chapter; or
    (6) Except as provided in paragraph (b) of this section, a quantity 
of hazardous material that requires placarding, under provisions of 
subpart F of part 172 of this chapter.
    (b) Paragraph (a)(6) of this section does not apply to those 
activities of a farmer, as defined in Sec. 171.8 of this chapter, that 
are in direct support of the farmer's farming operations.
    (c) In this subpart, the term ``shipment'' means the offering or 
loading of hazardous material at one loading facility using one 
transport vehicle, or the transport of that transport vehicle.

    3. In Sec. 107.608, paragraphs (a), (b), and (d) are 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. Each registration year begins on July 1 and ends on June 30 of 
the following year.
    (b) No person required to file a registration statement may 
transport a hazardous material or cause a hazardous material to be 
transported or shipped, unless such person has on file, in accordance 
with Sec. 107.620, a current Certificate of Registration in accordance 
with the requirements of this subpart.
* * * * *
    (d) Copies of DOT Form F 5800.2 and instructions for its completion 
may be obtained from the Hazardous Materials Registration Program, DHM-
60, U.S. Department of Transportation, Washington, DC 20590-0001, by 
calling 617-494-2545 or 202-366-4109, or via the Internet at ``http://hazmat.dot.gov''.
* * * * *

    4. Section 107.612 is revised to read as follows:


Sec. 107.612  Amount of fee.

    (a) Registration year 1999-2000 and earlier. For all registration 
years through 1999-2000, each person subject to the requirements of 
Sec. 107.601(a)(1)-(5) of this subpart must pay an annual fee of $300 
(which includes a $50 processing fee).
    (b) Registration year 2000-2001 and following. For each 
registration year beginning with 2000-2001, each person subject to the 
requirements of this subpart must pay an annual fee as follows:
    (1) Small business. Each person that qualifies as a small business 
under criteria specified in 13 CFR part 121 applicable to the standard 
industrial classification (SIC) code that describes that person's 
primary commercial activity must pay an annual fee of $275 and the 
processing fee required by paragraph (b)(3) of this section.
    (2) Other than a small business. Each person that does not meet 
criteria specified in paragraph (b)(1) of this section must pay an 
annual fee of $1,975 and the processing fee required by paragraph 
(b)(3) of this section.
    (3) Processing fee. The processing fee is $25 for each registration 
statement filed. A single statement may be filed for

[[Page 7310]]

one, two, or three registration years as provided in Sec. 107.616(c).

    5. In Sec. 107.616, paragraphs (c) and (d)(2) are revised to read 
as follows:


Sec. 107.616  Payment procedures.

* * * * *
    (c) Payment must correspond to the total fees properly calculated 
in the ``Amount Due'' block of the DOT form F 5800.2. A person may 
elect to register and pay the required fees for up to three 
registration years by filing one complete and accurate registration 
statement.
    (d) * * *
    (2) Pay a registration and processing fee of $350 (including a $50 
expedited handling fee). For registration years 2000-2001 and 
following, persons who do not meet the criteria for a small business, 
as specified in Sec. 107.612(b)(1), must enclose an additional payment 
of $1,700 with the expedited follow-up material, for a total of $2,050 
(including a $50 expedited handling fee); and
* * * * *

    Issued in Washington, D.C. on February 8, 2000, under authority 
delegated in 49 CFR part 1.
Kelley S. Coyner,
Administrator.
[FR Doc. 00-3300 Filed 2-11-00; 8:45 am]
BILLING CODE 4910-60-P