[Federal Register Volume 71, Number 157 (Tuesday, August 15, 2006)]
[Proposed Rules]
[Pages 46884-46887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13312]



[[Page 46884]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2006-25589 (HM-208F)]
RIN 2137-AE11


Hazardous Materials Transportation; Registration and Fee 
Assessment Program

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: This rule proposes to amend the statutorily mandated 
registration and fee assessment program for persons who transport or 
offer for transportation certain categories and quantities of hazardous 
materials. For those registrants not qualifying as a small business or 
not-for-profit organization, we are proposing to increase the fee to 
$1,975 (plus a $25 administrative fee) for registration year 2007-2008 
and increase the fee to $2,975 (plus a $25 administrative fee) for 
registration year 2008-2009 and following years. The fee increase is 
necessary to fund the national Hazardous Materials Emergency 
Preparedness (HMEP) grants program at approximately $28,000,000 in 
accordance with the Administration's Fiscal Year 2007 budget proposal 
to Congress. PHMSA is also proposing to eliminate the expedited 
telephonic registration option. The number of telephonic registrations 
has steadily decreased with the addition of the internet registration 
option, therefore, we believe that this registration option is no 
longer necessary.

DATES: Submit comments by October 16, 2006.

ADDRESSES: You may submit comments identified by any of the following 
methods:
    --Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    --Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    --Fax: 1-202-493-2251.
    --Mail: Docket Management System: U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    --Hand Delivery: To the Docket Management System; Room PL-401 on 
the Plaza Level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal Holidays.
    Instructions: You must include the agency name (Pipeline and 
Hazardous Materials Safety Administration) and docket number (PHMSA-xx-
xxxx (HM-208F)) or the Regulatory Identification Number (RIN) for this 
notice at the beginning of your comment. You should submit two copies 
of your comments if you submit them by mail. If you wish to receive 
confirmation we received your comments, you should include a self-
addressed stamped postcard. Note that all comments received will be 
posted without change to http://dms.dot.gov including any personal 
information provided. Please see the Privacy Act section of this 
document.
    Docket: You may view the public docket through the Internet at 
http://dms.dot.gov or in person at the Docket Management System office 
at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of 
Hazardous Materials Planning and Analysis, PHMSA, (202) 366-4484, or 
Ms. Deborah Boothe, Office of Hazardous Materials Standards, PHMSA, 
(202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1992, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) has conducted a national registration program 
under the mandate in 49 U.S.C. 5108 for persons who offer for 
transportation or transport certain hazardous materials in intrastate, 
interstate, or foreign commerce. The purposes of the registration 
program are to gather information about the transportation of hazardous 
materials, and fund the Hazardous Materials and Emergency Preparedness 
(HMEP) grants program. The HMEP grants program supports hazardous 
materials emergency response planning and training activities by 
States, local governments, and Indian tribes. See 49 U.S.C. 5108(b), 
5116. PHMSA has discretion to require additional persons to register, 
beyond those offerors and transporters of the categories and quantities 
of hazardous materials listed in 49 U.S.C. 5108(a)(1), and to set the 
annual registration fee between the statutorily mandated minimum and 
maximum amounts. See 49 U.S.C. 5108(a)(2), 5108(g)(2)(A).
    To meet Congressionally authorized funding of $14.3 million for the 
HMEP grants program, in 2000, we expanded the base of registrants and 
adopted a two-tier fee schedule under which the registration fee was 
set at $275 for persons qualifying as small businesses under Small 
Business Administration (SBA) criteria, and $1,975 for other persons 
(plus a $25 processing fee in all cases). (69 FR 7297) Due to a 
surplus, in 2003, we temporarily adjusted the registration fee to $125 
(plus a $25 processing fee) for small businesses and not-for-profit 
organizations and $275 (plus a $25 processing fee) for all other 
registrants. (68 FR 1342) In 2006, the fees increased to $250 (plus a 
$25 processing fee) for small businesses and not-for-profit 
organizations and $975 (plus a $25 processing fee) for all other 
registrants.
    Congress reauthorized the Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) in 2005 
through the ``Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005'' (Title VII of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act--A Legacy for Users 
(SAFETEA-LU), P.L. 109-59, 119 Stat. 1144, August 10, 2005). The Act 
makes available approximately $28,000,000 for the HMEP grants program 
and lowers the maximum registration fee from $5,000 to $3,000. 
Consistent with SAFETEA-LU, the Administration's Fiscal Year 2007 
budget proposal to Congress requests $28,000,000 in support of HMEP 
activity.

II. HMEP Grants Program

 A. Purpose and Achievements of the HMEP Grants Program

    The HMEP grants program, as mandated by 49 U.S.C. 5116, provides 
Federal financial and technical assistance to States and Indian tribes 
to ``develop, improve, and carry out emergency plans'' within the 
National Response System and the Emergency Planning and Community 
Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 et seq. The 
grants are used to develop, improve, and implement emergency plans; to 
train public sector hazardous materials emergency response employees to 
respond to accidents and incidents involving hazardous materials; to 
determine flow patterns of hazardous materials within a State and 
between States; and to determine the need within a State for regional 
hazardous materials emergency response teams.
    The HMEP grants program encourages the growth of the hazardous 
materials planning and training programs of State, local, and tribal 
governments by limiting the Federal funding to 80

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percent of the cost a State or Indian tribe incurs to carry out the 
activity for which the grant is made. See 49 U.S.C. 5116(e). HMEP 
grants supplement the amount already being provided by the State or 
Indian tribe. By accepting an HMEP grant, the State or tribe makes a 
commitment to not only maintain its previous level of support, but also 
to increase the previous level by an amount representing 20 percent of 
the funds expended on grant-supported activities each year. See 49 
U.S.C. 5116(a)(2)(A), 5116(b)(2)(A) and 5116(e).
    Since 1993, PHMSA has awarded all States and territories and 45 
Native American tribes planning and training grants totaling $125 
million. These grants helped to:
     Train 1,843,000 hazardous materials responders;
     Conduct 7,545 commodity flow studies;
     Write or update more than 41,344 emergency plans;
     Conduct 9,452 emergency response exercises; and
     Assist 18,907 local emergency planning committees (LEPCs).
    Since the beginning of the program, HMEP grantees have used program 
funds to support the following related activities in the total amounts 
indicated:
     $3.2 million for the development and periodic updating of 
a national curriculum used to train public sector emergency response 
and preparedness teams. The curriculum guidelines, developed by a 
committee of Federal, State, and local experts, include criteria for 
establishing training programs for emergency responders at five 
progressively more skilled levels: (1) First responder awareness, (2) 
first responder operations, (3) hazardous materials technician, (4) 
hazardous materials specialist, and (5) on-scene commander.
     $2.5 million to monitor public sector emergency response 
planning and training for hazardous materials incidents, and to provide 
technical assistance to State or Indian tribe emergency response 
training and planning for hazardous materials incidents.
     $6 million for periodic updating and distribution of the 
North American Emergency Response Guidebook. This guidebook provides 
immediate information on initial response to hazardous materials 
incidents, and is distributed free of charge to the response community.
     $2 million for the International Association of Fire 
Fighters (IAFF) to train instructors to conduct hazardous materials 
response training programs.

B. Increased Funding of the HMEP Grants Program

    An estimated 800,000 shipments of hazardous materials make their 
way through the national transportation system each day. It is 
impossible to predict when and where a hazardous materials incident may 
occur or what the nature of the incident may be. This potential threat 
requires state and local agencies to develop emergency plans and train 
emergency responders on the broadest possible scale.
    The HMEP training grants are essential for providing adequate 
training of persons throughout the nation who are responsible for 
responding to emergencies involving the release of hazardous materials. 
There are over 2 million emergency responders requiring initial 
training or periodic recertification training, including 250,000 paid 
firefighters, 850,000 volunteer firefighters, 725,000 law enforcement 
officers, and 500,000 emergency medical services (EMS) providers. Due 
to the high turnover rates of emergency response personnel, there is a 
continuing need to train a considerable number of recently recruited 
responders at the most basic level.
    In addition, training at more advanced levels is essential to 
ensure emergency response personnel are capable of effectively and 
safely responding to serious releases of hazardous materials. The 
availability of increased funding for the HMEP grants program will 
encourage State, tribal, and local agencies to provide more advanced 
training.
    The increased funding for HMEP grants will enable PHMSA to help 
meet previously unmet needs of State, local and tribal governments by 
providing for the following activities authorized by law:
     $21,800,000 for training and planning grants, an increase 
of $9 million;
     A new $4,000,000 grant program for non-profit hazmat 
employee organizations to train hazmat instructors who will train 
hazmat employees;
     $1,000,000 for grants to support certain national 
organizations to train instructors to conduct hazardous materials 
response training programs, an increase of $750,000;
     $625,000 for revising, publishing, and distributing the 
North American Emergency Response Guidebook, an increase of $125,000;
     $200,000 for continuing development of a national training 
curriculum; and
     $150,000 for monitoring and technical assistance.

III. Summary of Proposal to Increase HMEP Funding

    A registration fee system should: (1) Be simple, straightforward, 
and easily implemented and enforced; (2) employ an equity factor 
reflecting the differences in level of risk to the public and the 
financial impact associated with the business activities of large and 
small businesses; and (3) ensure adequate funding for the HMEP grants 
program. Under Federal hazmat law, we have the discretion to increase 
registration fees for both small and large businesses. We considered 
several alternatives for increasing the funds available for the HMEP 
grants program. One option was to increase the fee for all businesses 
offering for transportation or transporting the covered hazardous 
materials. Another option was to maintain the fee for small businesses 
and not-for-profit organizations while adjusting the fee for larger 
businesses.
    Due to a surplus, in 2003, we temporarily adjusted the registration 
fee to $125 (plus a $25 processing fee) for small businesses and not-
for-profit organizations and $275 (plus a $25 processing fee) for all 
other registrants. (68 FR 1342) This reduction has reduced the current 
surplus to approximately $8.5 million.
    To achieve the statutorily mandated goal of funding the HMEP grants 
program activities at approximately $28,000,000, we are proposing to 
adjust registration fees for persons other than small businesses to 
$1,975 (plus $25 processing fee) for registration year 2007-2008 and to 
$2,975 (plus $25 processing fee) for registration year 2008-2009 and 
following.
    We believe adjusting the fee solely for larger, for-profit 
businesses is the best approach to meet the objectives listed above. 
Although there are exceptions, small businesses and not-for-profit 
organizations generally offer for transportation or transport fewer and 
smaller hazardous materials shipments as compared to larger companies. 
Raising the registration fee only for other-than-small businesses 
rather than for all businesses correlates the fee structure to the 
level of risk associated with shipments offered for transportation and 
transported by larger companies. Even at the fee levels proposed for 
registration year 2008-2009, the two fee levels will only differ by a 
factor of 10.
    Moreover, increasing the registration fees only for other-than-
small businesses will affect significantly fewer entities and will 
affect entities that can more easily absorb the increase. Since 2000, 
PHMSA has received

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approximately 41,500 registrations for each registration year. Small 
businesses or not-for-profit organizations make up 84%, or 34,775, of 
the registrants, while large businesses make up 16%, or 6,725, of the 
registrants.
    We are also considering raising the current baseline penalty 
assessment of $1,000, for failing to register as an offeror or carrier 
of hazardous materials, for other-than-small businesses who fail to 
register and pay a registration fee. We would adjust the baseline 
penalty assessment to keep it proportional to the increased 
registration fee. We request comments on raising this baseline penalty 
assessment for other-than-small businesses.

IV. Expedited Registration Process

    Since the beginning of the registration program in 1992, we have 
provided a 24 hour, seven days-a-week expedited telephonic registration 
option. Person utilizing this option are provided a temporary 
registration number and must pay an additional $50 expedited processing 
fee. With the addition of the internet registration option, the number 
of registrants utilizing the expedited registration option has steadily 
decreased to a low of less than 100 persons since January 2006. 
Therefore, we are proposing to eliminate the expedited registration 
option.

V. Multi-Year Registrations

    We allow a person to register for up to three years in one 
registration statement (49 CFR 107.612(c)). We have received 
approximately 300 advance registrations for the 2007-2008 registration 
year and one advance registration for the 2008-2009 registration year 
from other-than-small businesses that have paid the fee previously 
established for those years. We apply fees according to the fee 
structure ultimately established by regulation for the registration 
year rather than according to the fee set at the time of payment. Thus, 
if we adopt the increase in registration fees proposed in this NPRM, 
additional fees would be required for registrations paid in advance at 
the lower levels in effect at the time of payment. When we lowered the 
fees for all registrants in 2003, we provided over 7,100 refunds 
amounting to over $2.3 million within the first year to registrants who 
had overpaid the newly established fees. If we adopt this proposal, we 
will notify each registrant who will be required to pay additional fees 
for the 2007-2008 and following registration years.

VI. Indian Tribes Exception

    The Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005 amends Sec.  5108(i)(2)(b) of the Federal 
hazmat law to add Indian tribes to the list of governmental agencies 
specifically excepted from the registration requirements. As a matter 
of policy, we have not been enforcing the registration requirements 
against Indian tribes, which were specifically included among the grant 
recipients. We are proposing to incorporate this specific exception 
into the HMR.

VII. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This proposed rule is published under the authority of the Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq., as amended by P.L. 109-59) and 49 U.S.C. 44701. Section 
5108 of the Federal hazmat law authorizes the Secretary of 
Transportation to establish a registration program to collect fees to 
fund HMEP grants. The HMEP grants program, as mandated by 49 U.S.C. 
5116, authorizes Federal financial and technical assistance to States 
and Indian tribes to ``develop, improve, and carry out emergency 
plans'' within the National Response System and the Emergency Planning 
and Community Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 et 
seq.
    Congress reauthorized the Federal hazmat law in 2005 through the 
Hazardous Materials Transportation Safety and Security Reauthorization 
Act of 2005. This Act makes available funding for the HMEP grants 
program at approximately $28,000,000, an increase of nearly $14 
million. In addition, the Act lowers the maximum fee to $3,000.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under section 3(f) of Executive Order 12866 and, therefore, was 
not subject to formal review by the Office of Management and Budget. 
This proposed rule is considered non-significant under the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034).
    The cost to industry of increasing registration fees will be $14 
million per year. The increased funding for the HMEP grants program 
will provide essential training of persons throughout the Nation who 
are responsible for responding to emergencies involving the release of 
hazardous materials. In addition, training at more advanced levels is 
essential to assure emergency response personnel are capable of 
effectively and safely responding to serious releases of hazardous 
materials. The increased funding for the HMEP grants will enable us to 
help meet previously unmet needs of State, local and tribal governments 
by providing funding for activities such as: (1) Planning and training 
grants for local emergency planning committees; (2) a new program for 
non profit hazmat employee organizations to train hazmat instructors 
that will train hazmat employees; (3) support to certain national 
organizations to train instructors to conduct hazardous materials 
response training programs; (4) revising, publishing, and distributing 
the North American Emergency Response Guidebook; (5) continuing 
development of a national training curriculum; and (6) monitoring and 
technical assistance.
    While the safety benefits resulting from improved emergency 
response programs are difficult to quantify, we believe these benefits 
significantly outweigh the annual cost of funding the grants program. 
The importance of planning and training cannot be overemphasized. To a 
great extent, we are a nation of small towns and rural communities 
served by largely volunteer fire departments. In many instances, 
communities' response resources already are overextended in their 
efforts to meet routine emergency response needs. The planning and 
training programs funded by the HMEP grants program enable state and 
local emergency responders to respond quickly and appropriately to 
hazardous materials transportation accidents, thereby mitigating 
potential loss of life and property and environmental damage. The 
regulatory evaluation to the final rule issued under Docket HM-208 (57 
FR 30620) showed that the benefits to the public and to the industry 
from the emergency response grant program would at least equal, and 
likely exceed, the annual cost of funding the grant program. Based on 
estimates of annual damages and losses resulting from hazardous 
materials transportation accidents, the analysis concluded that the 
HMEP program would be cost-beneficial if it were only 3% effective in 
reducing either the frequency or severity of the consequences of 
hazardous materials transportation accidents. Achieving this level of 
effectiveness is well within the success rates of training and planning 
programs to reduce errors and increase the proficiency and productivity 
of response personnel. A

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regulatory evaluation for this proposed rule is available for review in 
the public docket.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). This proposed rule preempts State, local, and Indian 
tribe requirements, but does not propose any regulation having 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.

D. Executive Order 13175

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

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each 
agency to analyze regulations and assess their impact on small 
businesses and other small entities to determine whether the rule is 
expected to have a significant impact on a substantial number of small 
entities. The provisions of this rule apply specifically to businesses 
not falling within the small entities category. Therefore, PHMSA 
certifies this rule would not have a significant economic impact on a 
substantial number of small entities.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$120.7 million or more, in the aggregate, to any of the following: 
State, local, or Native American tribal governments, or the private 
sector.

G. Paperwork Reduction Act

    Under 49 U.S.C. 5108(i), the information management requirements of 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to 
this proposed rule.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document may be used to cross-reference this action with the 
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. There are no significant environmental impacts associated 
with this proposed rule. PHMSA is proposing in this rule changes to the 
requirements in the HMR on the registration and fee assessment program 
for persons who transport or offer for transportation certain 
categories and quantities of hazardous materials. The proposed increase 
in registration fees will provide additional funding for the HMEP 
program to help mitigate the safety and environmental consequences of 
hazardous materials transportation accidents.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and record keeping requirements.
    In consideration of the foregoing, we propose to amend 49 CFR part 
107 as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

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

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

    2. In Sec.  107.606, redesignate paragraphs (a)(4), (a)(5), and 
(a)(6) as (a)(5), (a)(6), and (a)(7) respectively, and add a new 
paragraph (a)(4) to read as follows:


Sec.  107.606  Exceptions.

    (a) * * *
    (4) An Indian tribe.
* * * * *
    3. In Sec.  107.612, revise paragraph (d)(3) to read as follows:


Sec.  107.612  Amount of fee.

* * * * *
    (d) * * *
    (3) Other than a small business or not-for-profit organization. 
Each person that does not meet the criteria specified in paragraph 
(d)(1) or (d)(2) of this section must pay an annual registration fee 
of:
    (i) For registration year 2006-2007, $975 and the processing fee 
required by paragraph (d)(4) of this section;
    (ii) For registration year 2007-2008, $1,975 and the processing fee 
required by paragraph (d)(4) of this section;
    (iii) For registration year 2008-2009 and following, $2,975 and the 
processing fee required by paragraph (d)(4) of this section.
* * * * *


Sec.  107.616  [Amended]

    4. In Sec.  107.616, paragraph (a) is amended by, in the first 
sentence, eliminating the phrase ``Except as provided in paragraph (d) 
of this section,'' and paragraph (d) is removed.

    Issued in Washington, DC on August 9, 2006, under authority 
delegated in 49 CFR part 106.
Robert McGuire,
Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E6-13312 Filed 8-14-06; 8:45 am]
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