[Federal Register Volume 67, Number 179 (Monday, September 16, 2002)]
[Rules and Regulations]
[Pages 58343-58345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23476]



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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 107

[Docket No. RSPA-02-13328 (HM-208E)]
RIN 2137-AD74


Hazardous Materials: Miscellaneous Revisions to Registration 
Requirements

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

ACTION: Final rule.

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SUMMARY: RSPA (we) is amending its regulations concerning registration 
of persons who transport or offer for transportation in commerce 
certain categories and quantities of hazardous materials. We are 
adopting the North American Industry Classification System (NAICS) to 
determine whether an entity is a small business, consistent with 
actions taken by the Small Business Administration (SBA). We are also 
revising the requirements to permit registration over the internet and 
to authorize the use of additional credit cards to pay the registration 
fee. Other proposals in our December 7, 2000, notice of proposed 
rulemaking, to temporarily reduce registration fees and charge not-for-
profit organizations the same registration fee as a small business, 
will be addressed in a separate final rule after enactment of the 
Department of Transportation appropriations for Fiscal Year 2003, as we 
announced in our March 14, 2002, notice of proposed rulemaking in the 
Federal Register.

EFFECTIVE DATE: January 6, 2003.

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:

I. Background

    Since 1992, RSPA has conducted a national registration program of 
persons who offer for transportation or transport hazardous materials 
in intrastate, interstate, or foreign commerce, under the mandate in 49 
U.S.C. 5108. The purposes of the registration program are to (1) gather 
information about the transportation of hazardous material and (2) fund 
the Hazardous Materials Emergency Preparedness (HMEP) grants program 
which supports hazardous material emergency response planning and 
training activities by States, local governments, and Indian tribes and 
related activities. See sections 5108(b), 5116. The law gives RSPA 
discretion to require additional persons to register, beyond those 
offerors and transporters of the categories and quantities of hazardous 
materials listed in Sec.  5108(a)(1), and to set the annual 
registration fee between $250 and $5,000. See sections 5108(a)(2), 
5108(g)(2)(A).
    Until 2000, only those persons who offer or transport the 
categories and quantities of hazardous materials set forth in section 
5108(a)(1) were required to register, and the annual registration fee 
was set at the minimum level of $250 (plus a processing fee of $50). In 
each year through the July 1, 1999-June 30, 2000 registration year, the 
total registration fees collected by RSPA amounted to less than one-
half of the total $14.3 million intended by Congress for training and 
planning grants and grant-related activities.
    In a final rule published in the Federal Register on February 14, 
2000, RSPA applied the requirement to register to additional persons, 
and we adopted a two-tiered fee under which the registration fee was 
set at $275 for a person meeting the Small Business Administration 
(SBA) criteria for a small business, and $1,975 for other persons (plus 
a $25 processing fee in all cases). 65 FR 7297. However, a much greater 
than anticipated number of persons have paid the higher registration 
fee applicable to a larger business, and RSPA has collected more than 
$21 million each registration year starting with 2000-2001. Because 
Section 5108(g)(2)(C) requires RSPA to adjust the registration fee ``to 
reflect any unexpended balance'' in the HMEP Fund, on December 7, 2000, 
we published a notice of proposed rulemaking (NPRM) under Docket No. 
RSPA-00-8439 (HM-208D) proposing to: (1) Temporarily lower registration 
fees for all registrants for six registration years; (2) specify that a 
not-for-profit organization (regardless of its size) would pay the same 
fee as a small business; (3) replace the Standard Industrial 
Classification (SIC) code system with the North American Industry 
Classification System (NAICS), consistent with SBA actions; and, (4) 
allow payment by credit cards not previously authorized.
    RSPA has delayed taking final action on the proposals in the 
December 7, 2000, NPRM because our budget requests to Congress for FY 
2002 and FY 2003 have proposed to fund a portion of RSPA's hazardous 
materials safety program from excess registration fees (i.e., those 
exceeding the $14.3 million specified to be used for training and 
planning grants and grant-related activities). See the status documents 
we published in the Federal Register on May 2, 2001 (66 FR 22080), and 
March 14, 2002 (67 FR 11456). This proposal was not adopted by Congress 
in the FY 2002 DOT appropriations and, as soon as Congress acts on the 
FY 2003 budget request, we intend to take appropriate action on the 
proposals to temporarily reduce registration fees and charge not-for-
profit organizations the same registration fee as a small business. In 
the meantime, however, we consider that it is appropriate to adopt 
those proposals that are unrelated to reducing registration fees.

II. Discussion of Comments and Regulatory Changes

    RSPA received 19 written comments to the NPRM from emergency 
response organizations; industry associations representing a broad 
spectrum of businesses that offer or transport hazardous materials; and 
individuals engaged in agricultural retailing, petroleum distribution, 
farming, convenience store operations, and all modes of transportation. 
In this rule, we discuss only the comments unrelated to the fee 
reduction proposals in the December 7, 2000, NPRM.

A. SBA Criteria for Definition of a Small Business

    At the present time, the ``small business'' criteria used to 
determine the amount of the registration fees are found in the Standard 
Industrial Classification (SIC) code for the registrant's primary 
industry group. These codes were adopted and used by SBA until two 
years ago. In our February 14, 2000, final rule, we discussed the 
likelihood that SBA would change from SIC codes to the NAICS, and SBA's 
estimation that this change should not result in many instances in 
which an entity would lose its status as a small business. 65 FR at 
7304. After SBA adopted the NAICS in a final rule published on May 15, 
2000 (65 FR 30836), we proposed to make a similar change in Sec.  
107.612.
    Commenters supported this proposal. The Petroleum Marketers 
Association of America (PMAA) stated that RSPA should join other 
``administrative agencies [that] have begun using NAICS [which] will 
promote uniformity throughout the regulations.'' PMAA stated that there 
would be ``no detrimental effect on our members in

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changing from SIC system to the NAICS.''
    The Agricultural Retailers Association (ARA) ``supports the change 
with the proviso that the agency include NAICS information in all 
future registration correspondence with the regulated community.'' It 
stated that ``there remains a definite lack of knowledge of the current 
SIC Code system among ARA's members and the changeover to NAICS will 
only further cloud the issue.''
    The Petroleum Transportation and Storage Association (PTSA) stated 
that;

    NAICS is a far more useful guideline to determine business 
categories and size because it more accurately reflects modern 
economic activity than the SIC code. The highly specialized economic 
activity descriptions in NAICS would allow shippers who have 
multiple business establishments to more easily calculate the number 
of employees or gross receipt thresholds that determine the amount 
of the annual registration fee.

    Our further review of SIC and NAICS codes confirms our earlier 
conclusion that very few entities would lose status as a small 
business. Based on that review and the comments received in response to 
the NPRM, we are adopting the proposal to use the NAICS for size 
standards.
    A list of size criteria by NAICS codes is provided on the SBA 
Internet site at: http://www.sba.gov/size/sizetable.html.
    A list by SIC code with the corresponding NAICS code and size 
standard is provided at: http://www.sba.gov/size/SIC2NAICSmain.html.
    A search engine for the SIC and NAICS systems is provided by the 
SBA at its Internet site at: https://eweb1.sba.gov/naics/dsp_naicssearch2.cfm. Additional information on NAICS, including tables 
showing the correspondences between the two numbering systems is 
provided at: http://www.census.gov/epcd/www/naics.html. Registrants 
unfamiliar with NAICS should find these sites useful in determining the 
appropriate code.

B. Registration Over the Internet

    Within a few months after issuing the February 14, 2000, final 
rule, we realized that we should allow persons to register and pay the 
registration fee over the Internet, even though the registration 
procedures contained in the regulations do not specifically discuss 
that method. We are amending Sec.  107.616 to specifically permit a 
person to use the Internet to submit its registration statement and pay 
the registration fee with a credit card or by other means of electronic 
payment.

C. Additional Credit Cards Authorized

    In the NPRM, we proposed to authorize persons to use additional 
credit cards (besides Visa and MasterCard) to pay registration fees. 
The only commenter on this proposal was the American Trucking 
Associations (ATA), which supported the ``expanded payment methods.'' 
To allow greater flexibility, we are providing in Sec.  107.616(b) that 
a person may use any ``credit card or other electronic means of payment 
acceptable to the Department.''

III. Rulemaking Analysis and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866. Therefore, it was not 
reviewed by the Office of Management and Budget (OMB), and a regulatory 
assessment was not required for OMB. This rule is not considered 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). Due to minimal economic 
impact of this final rule, preparation of a regulatory impact analysis 
or regulatory evaluation is not warranted.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). The 
registration requirements do not impair the ability of States, local 
governments, or Indian tribes to impose their own fees or registration 
or permit requirements on persons who offer or transport hazardous 
materials in commerce. RSPA encourages States, local governments, and 
Indian tribes to adopt and enforce requirements in the Hazardous 
Materials Regulations and the Federal registration requirement, in 
order to enhance compliance with a nationally uniform set of 
regulations on the transportation of hazardous materials.
    The consultation and funding requirements of Executive Order 13132 
do not apply because 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.

C. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule does 
not have tribal implications, does not impose substantial direct 
compliance costs and is required by statute, the funding and 
consultation requirements of Executive Order 13175 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each 
agency to analyze regulations and assess their impact on small 
businesses and other small entities to determine whether the rule is 
expected to have a significant impact on a substantial number of small 
entities.
    In the February 14, 2000, final rule in Docket No. HM-208C, RSPA 
certified that that final rule did affect a significant number of small 
entities, but that the economic impact on these small entities will not 
be significant. 65 FR at 7308-09. This final rule affects the same 
small entities that Docket HM-208C did and, therefore, this final rule 
affects a significant number of small entities. See 65 FR at 7307 
through 7309. However, this final rule addresses editorial and other 
minor changes that have no economic impact on small businesses. 
Therefore, I certify that this final rule does not have a significant 
economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does 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.

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. 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

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heading of this document may be used to cross-reference this action 
with the Unified Agenda. To distinguish this final rule from the 
continuing rulemaking action concerning fee reductions we have created 
a new RIN number, 2137-AD74, and Docket No. RSPA-02-13328 (HM-208E) for 
this final rule. The fee-reduction related proposals will remain under 
RIN 2137-AD53 and Docket No. RSPA-00-8439 (HM-208D).

List of Subjects in 49 CFR Part 107

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


    In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

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

    Authority: 49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L.104-
121, 110 Stat. 857; 49 CFR 1.45, 1.53.


Sec.  107.612  Amount of fee.

    2. In Sec.  107.612, in paragraph (b)(1), the wording ``standard 
industrial classification (SIC)'' is removed and ``North American 
Industry Classification System (NAICS)'' is added in its place.

    3. In Sec.  107.616, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  107.616  Payment procedures.

    (a) Except as provided in paragraph (d) of this section, each 
person subject to the requirements of this subpart must mail the 
registration statement and payment in full to the U.S. Department of 
Transportation, Hazardous Materials Registration, P.O. Box 740188, 
Atlanta, Georgia 30374-0188, or submit the statement and payment 
electronically through the Department's e-Commerce Internet site. 
Access to this service is provided at http://hazmat.dot.gov/register.htm. A registrant required to file an amended registration 
statement under Sec.  107.608(c) must mail it to the same address or 
submit it through the same Internet site.
    (b) Payment must be made by certified check, cashier's check, 
personal check, or money order in U.S. funds and drawn on a U.S. bank, 
payable to the U.S. Department of Transportation and identified as 
payment for the ``Hazmat Registration Fee,'' or by completing an 
authorization for payment by credit card or other electronic means of 
payment acceptable to the Department on the registration statement or 
as part of an Internet registration as provided in paragraph (a) of 
this section.
* * * * *

    Issued in Washington, DC on September 10, 2002, under authority 
delegated in 49 CFR Part 1.
Ellen G. Engleman,
Administrator.
[FR Doc. 02-23476 Filed 9-13-02; 8:45 am]
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