[Federal Register Volume 72, Number 85 (Thursday, May 3, 2007)]
[Rules and Regulations]
[Pages 24536-24539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8394]


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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; Miscellaneous Revisions to 
Registration and Fee Assessment Program

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

ACTION: Final rule.

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SUMMARY: PHMSA is amending the statutorily mandated registration and 
fee assessment program for persons who transport or offer for 
transportation certain categories and quantities of

[[Page 24537]]

hazardous materials. In this final rule, we are eliminating the 24-
hour, seven-days-per-week telephonic expedited registration option 
because it is no longer necessary now that there is an internet option. 
In addition, we are adopting an explicit exception from registration 
requirements for Indian Tribes. We are not increasing registration fees 
in this final rule.

DATES: This final rule is effective June 30, 2007.

FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous 
Materials Standards, (202) 366-8553, or David Donaldson, Office of 
Hazardous Materials Planning and Analysis, (202) 366-4484, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 15, 2006, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) published a notice of proposed rulemaking (NPRM) 
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. (71 FR 46884) In the 
NPRM, PHMSA proposed to:

--Increase the fee to $1,975 (plus a $25 administrative fee) for 
registration year 2007-2008 for those registrants not qualifying as a 
small business or not for profit organizations;
--Increase the fee to $2,975 (plus a $25 administrative fee) for 
registration year 2008-2009 and following for those registrants not 
qualifying as small businesses or not for profit organizations;
--Eliminate the 24-hour, seven-days-per-week telephonic expedited 
registration option;
--Incorporate Indian Tribes into the list of entities specifically 
excepted from the registration requirements; and
--Raise the current $1,000 baseline penalty assessment for offerors and 
carriers of hazardous materials (other than small businesses) that fail 
to register and pay a registration fee.

II. Registration Fee Increase

    The Hazardous Materials and Emergency Preparedness (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 is funded by registration fees 
collected from persons who offer for transportation or transport 
certain hazardous materials in intrastate, interstate, or foreign 
commerce.
    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), Public Law 109-59, 119 Stat. 1144, August 10, 2005). The 
Act made available $28.3 million for the HMEP grants program and 
lowered the maximum registration fee from $5,000 to $3,000. Consistent 
with SAFETEA-LU, the Administration's Fiscal Year 2007 budget proposal 
to Congress requested $28,000,000 in support of HMEP activity. The 
August 2006 NPRM proposed to increase registration fees to meet the 
Administration's FY 2007 request for funding the HMEP.
    Section 2 of the Continuing Appropriations Resolution, 2007 (Pub. 
L. 109-289, division B), as amended by Public Laws 109-369 and 109-383, 
(``Revised Continuing Appropriation Resolution, 2007''), limited 
obligations for the HMEP grants program to the FY 2006 level of $14.3 
million. Therefore, we are not adopting the proposed fee increase in 
this final rule. The Administration's FY 2008 budget requested $28.3 
million to fund the HMEP grants program. Depending on available and 
appropriated funding for the FY 2008 program, we may initiate a future 
rulemaking to adjust the registration fee for FY 2008.

III. Discussion of Comments and Regulatory Changes

    PHMSA received more than 900 written comments to the NPRM from 
emergency response organizations, state and local emergency planning 
organizations, industry associations representing a broad spectrum of 
businesses that offer or transport hazardous materials, and individuals 
engaged in agricultural retailing, petroleum distribution, and 
petroleum marketing. Most of these comments addressed the proposed 
increase in registration fees. Only one commenter addressed the 
proposal to raise the baseline penalty assessment. One commenter 
addressed the proposal in the NPRM to eliminate the expedited 
registration option; no commenters addressed the proposed exception 
from registration for Indian tribes.

A. Baseline Penalty Assessment

    We considered raising the current $1,000 baseline penalty 
assessment for offerors and carriers of hazardous materials (other than 
small businesses) that fail to register and pay a registration fee. We 
proposed to adjust the baseline penalty assessment to keep it 
proportional to the increased registration fee. Only one commenter, 
National Tank Truck Carriers (NTTC), addressed this proposal. NTTC 
urged the agency not to distinguish among violators on the basis of 
size.
    PHMSA decided to not adjust the civil penalty in this proceeding. 
We may revisit this issue in a later rulemaking proceeding.

B. 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. Persons using 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 in 2000, the number of 
registrants using the expedited registration option has steadily 
decreased. Only 194 persons, out of a total of 35,005 registrants, used 
the expedited telephonic registration option during calendar year 2006. 
In the NPRM, we proposed to discontinue the expedited registration 
option.
    PHMSA received one comment on the proposal. The Petroleum 
Transportation and Storage Association (PTSA) suggested that expedited 
telephonic registration should be retained as an option in case the on-
line capability is unavailable, as has sometimes happened.
    The addition of the internet registration option has made the 
telephonic expedited registration option obsolete. The internet 
registration option is faster and more efficient. It is no longer cost-
effective for PHMSA to continue maintaining a registration option so 
few persons use. Moreover, the Internet option is more cost-effective 
for registrants since there is no additional fee for the Internet 
service. We understand PTSA's concern about possible system down times 
and

[[Page 24538]]

consequent unavailability of the system to registrants; however, we do 
not agree that this infrequent occurrence warrants retaining the 24-
hour, seven days-per-week expedited telephonic registration option. 
Further, we have enhanced the internet payment procedures to minimize 
the difficulties previously encountered in verifying payments. 
Therefore, we are adopting the proposal to eliminate the expedited 
telephonic registration option for those required to register and pay a 
registration fee.

C. Indian Tribes Exception

    Section 107.606(a) of the Hazardous Materials Regulations (HMR) 
lists the entities excepted from the registration requirements set out 
in section 5108 of the Federal hazmat law. SAFETEA-LU amended section 
5108(i)(2)(B) to add Indian tribes to the list of entities specifically 
excepted from the registration requirements. In the NPRM, we proposed 
to incorporate this specific exception into the HMR. As a matter of 
policy, PHMSA has not been enforcing the registration requirements 
against Indian tribes. We did not receive any comments on this 
proposal; therefore, we are adopting it as proposed.

IV. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final 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 Pub. 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.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and, therefore, was not subject 
to review by the Office of Management and Budget. This final rule is 
considered non-significant under the Regulatory Policies and Procedures 
of the Department of Transportation (44 FR 11034). Neither of the 
provisions adopted in this final rule will result in additional costs 
to the regulated community.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria established in Executive Order 13132 (``Federalism''). 
This final rule does not preempt State, local, and Indian tribe 
requirements, and it does not have 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 final rule has been analyzed in accordance with the principles 
and criteria established in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final 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. Although the entities affected by this rule are mostly small 
businesses, neither of the provisions adopted in this final rule will 
result in additional costs to the regulated community. PHMSA certifies 
this rule will not have a significant economic impact on a substantial 
number of small entities.

F. 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 
$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 final 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. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to evaluate the 
consequences of their actions on the environment. PHMSA has concluded 
there are no significant environmental impacts associated with this 
final rule. This rule makes only minor revisions to the registration 
fee and assessment program, with no resulting effects on the human 
environment.

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 recordkeeping requirements.

0
In consideration of the foregoing, 49 CFR part 107 is amended as 
follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section 4 
(28 U.S.C. 2461 note); Pub. L. 104-121 Sections 212-213; Pub. L. 
104-134 Section 30001; 49 CFR 1.45, 1.53.


0
2. In Sec.  107.606, redesignate paragraphs (a)(4), (a)(5), and (a)(6), 
as (a)(5), (a)(6), and (a)(7) respectively, add new paragraph (a)(4), 
and revise newly redesignated paragraph (a)(5) to read as follows:


Sec.  107.606  Exceptions.

    (a) * * *
    (4) An Indian tribe.
    (5) An employee of any of those entities in paragraphs (a)(1) 
through (a)(4) of this section with respect to the employee's official 
duties.
* * * * *


Sec.  107.616  [Amended]

0
3. In Sec.  107.616, make the following changes:
0
a. Amend the first sentence in paragraph (a) by removing the phrase 
``Except as provided in paragraph (d) of this section,''.

[[Page 24539]]

0
b. Remove paragraph (d).

    Issued in Washington, DC on April 25, 2007, under authority 
delegated in 49 CFR part 1.
Thomas J. Barrett,
Administrator.
[FR Doc. E7-8394 Filed 5-2-07; 8:45 am]
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