[Federal Register Volume 78, Number 76 (Friday, April 19, 2013)]
[Rules and Regulations]
[Pages 23503-23506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09213]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2012-0185 (HM-208I)]
RIN 2137-AE95


Hazardous Materials; Temporary Reduction of Registration Fees

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

ACTION: Final rule.

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SUMMARY: The Federal hazardous materials transportation law requires 
DOT to adjust the amount of the annual registration fee to account for 
any unexpended balance in the Hazardous Materials Emergency 
Preparedness (HMEP) Fund. Due to an unexpended balance that has 
accumulated in the Fund, PHMSA is lowering the registration fees for 
registration year 2013-2014 for all persons, as defined in PHMSA 
regulations, that transport or offer for transportation in commerce 
certain categories and quantities of hazardous materials. Specifically, 
for registration year 2013-2014 the fee for a small business or not-
for-profit organization is revised to be $125 (plus a $25 processing 
fee), and for all other businesses the fee is $1300 (plus a $25 
processing fee). After the 2013-2014 registration year, the 
registration fees will return to 2012-2013 registration year levels.
    Additionally, PHMSA is making an editorial change to its 
regulations to clarify the appropriate fee amounts; there are no 
substantive changes other than the addition of the fees for 2013-2014 
and for 2014-2015 and later.
    In order to make the change effective for the 2013-2014 
registration year and thus draw down the unexpended balance as soon as 
possible, PHMSA is issuing this final rule without a prior notice of 
proposed rulemaking in accordance with good cause exemption specified 
in the Administrative Procedures Act. Additionally, for good cause this 
final rule is effective immediately.

DATES: Effective date: April 19, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Outreach, 
Training, and Grants Division (PHH-50), (202) 366-4484, or Ms. Deborah 
Boothe, Standards and Rulemaking Division (PHH-10), (202) 366-8553, 
PHMSA, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

I. Background

    The PHMSA Hazardous Materials (HM) Grants Program is designed to 
enhance the training of the nation's emergency response personnel, and 
to encourage the development of local emergency planning. The HM Grants 
Program is comprised of three emergency preparedness grants: Hazardous 
Materials Emergency Preparedness (HMEP) Grants, Supplemental Public 
Sector Training (SPST) Grants, and Hazardous Materials Instructor 
Training (HMIT) Grants. The program is funded by registration fees 
collected from hazmat shippers and carriers that offer for 
transportation or transport certain hazmat in intrastate, interstate, 
or foreign commerce in accordance with 49 CFR part 107, Subpart G.
    These fees fund training and planning grants, monitoring and 
technical assistance, curriculum development, and staffing costs. 
Registration fees also fund the publication and distribution of the 
Emergency Response Guidebook (ERG). Planning activities are integral to 
the implementation of effective emergency preparedness programs. 
Grantee planning activities are often focused on the identification and 
assessment of hazmat transportation risks within their communities 
(e.g., which commodities are shipped, the volume and frequency of those 
shipments, availability of current emergency response plans, etc.). 
Training at more advanced levels is essential to assure emergency 
response personnel are capable of effectively and safely responding to 
releases of hazardous materials. PHMSA requires the use of the NFPA 
Standard 472, ``Standard for Competence of Responders to Hazardous 
Materials/Weapons of Mass Destruction Incidents'', available at: http://www.nfpa.org, in the development of its PHMSA funded training 
programs.
    In accordance with 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), Pub. L. 109-59, 119 Stat. 1144, August 10, 2005) an 
obligation limitation of $28.3 million may be expended each year from 
the HMEP Fund for the following purposes:
     $21,800,000 to make emergency response planning and 
training grants to States and Indian tribes (of which at least 75% must 
be used for planning and training at the local level), under 49 U.S.C. 
5116(a) & (b) (HMEP Grants);
     Up to $4,000,000 to make grants to nonprofit hazardous 
materials employee organizations to train instructors to train hazmat 
employees and for the instructors to train the hazmat employees, under 
49 U.S.C. 5107(c) (HMIT Grants);
     $1,000,000 to make grants to national nonprofit fire 
service organizations to train instructors to provide hazardous 
materials response training to emergency responders, under 49 U.S.C. 
5116(j) (SPST Grants);
     $150,000 for monitoring emergency response planning and 
training and coordinating assistance through the National Response Team 
and Federal

[[Page 23504]]

Radiological Preparedness Coordinating Committee, under 49 U.S.C. 
5116(f);
     $188,000 to develop and update a national curriculum for 
training public sector emergency response and preparedness teams, under 
49 U.S.C 5115;
     $625,000 to revise, publish, and distribute the Emergency 
Response Guidebook, under 49 U.S.C. 5116(i)(3); and
     $555,000 for administrative expenses, under 49 U.S.C. 
5116(i)(4).
    As specified in 49 CFR part 107, subpart G, PHMSA requires persons, 
as defined in Sec.  171.8 of the Hazardous Materials Regulations (HMR; 
49 CFR parts 171-180), that offer or transport certain types and 
quantities of hazardous materials to file an annual registration 
statement and pay a fee. Since 2010, the current annual registration 
fee has been set at $250 (plus a $25 processing fee) for small 
businesses, as defined by the Small Business Administration (SBA) size 
standard, and for not-for-profit organizations under 26 U.S.C. 501(a), 
and $2,575 (plus a $25 processing fee) for all other registrants. (See 
49 CFR 107.612(a)).
    Three main factors influence both the amount of funds collected and 
expended in a given year: (1) The number of persons that will register, 
(2) the total amount of grants requested in applications and for which 
funds will be obligated, and (3) the activities which will not be 
actually completed so that funds will later be ``de-obligated.''

II. Statutory Requirement To Adjust Registration Fees

    The Federal hazardous materials transportation law (See 49 U.S.C. 
5108(g)(2)(B)) requires the Secretary to adjust the amount of the 
annual registration fee ``to reflect any unexpended balance in the 
account'' of the HM grants program. During 2009 and 2010, evaluations 
of the HM Grants Program were performed internally by PHMSA and by an 
outside audit service.\1\ As a result of the findings, PHMSA 
implemented a comprehensive plan that has established greater 
accountability of operations, enhanced oversight of grantees, and 
increased clarification of allowable program expenses, which has 
encouraged grant applicants to better evaluate their own programs and 
grant expenditures. In addition, PHMSA has taken a proactive approach 
to more thoroughly explain the grant program and authorized 
expenditures to the states and tribes. An intended outcome of this 
effort is to increase the impact of PHMSA grant funding on local 
community preparedness and decrease de-obligations.
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    \1\ Audit findings are available at the following URL: http://www.oig.dot.gov/library-item/5699.
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    As of December 31, 2012, the HMEP Grants Fund had an unexpended 
balance of $13.1 million. The primary reason for the current unexpended 
balance is due to an accumulation of HMEP grant de-obligations. An 
initial result of PHMSA's effort to enhanced oversight of grantees has 
been a reduction in the amount of grant funds actually utilized, as 
grantees adjust to the changes, which has led to slightly higher than 
usual de-obligations in recent years. As grantees revise and improve 
their programs, PHMSA expects to realize a significant reduction in 
grantee de-obligations. Based on PHMSA's calculations, cutting the fee 
in half for one year should eliminate the unexpended balance. PHMSA's 
calculations indicate that, with appropriate oversight, returning to 
the current fee structure after the one year reduction is appropriate. 
During the 2011-2012 registration year, PHMSA collected $26,487,806 in 
registration fees, which is less than the $28,318,000 obligation 
limitation from Congress.\2\ Under the reduced 2013-2014 rates, PHMSA 
is assuming that roughly the same number of entities will register, so 
the anticipated collections are roughly $13.4 million. This collection 
combined with the unexpended balance of $13.1 million will fund the 
program at or slightly below the obligation limitation level. This rule 
is a one-year adjustment to the fees, but since the unexpended balance 
accumulated for several reasons and over several years, PHMSA is 
dedicated to: (1) working with grantees to more fully explain the HM 
Grants Program and authorized expenditures in order to decrease de-
obligations to the maximum extent possible and (2) monitoring closely, 
and considering additional actions, as needed, to account for any 
future unexpended balance.
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    \2\ Registration statistics are available at the following URL: 
http://phmsa.dot.gov/hazmat/library/data-stats/registration.
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III. Registration Program Amendments

    PHMSA's fundamental goals of the registration fee system are for 
the system to be simple, straightforward, easily implemented, and 
enforceable; 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 ensure 
adequate funding for the HM Grants Program (See 65 FR 7302-03). PHMSA 
has determined adjusting the fee for all entities by an equal 
proportion for registration year 2013-2014 is the best approach to meet 
the fundamental goals of the registration fee system. To carry out 
these goals and eliminate the unexpended balance in the HMEP Fund, 
PHMSA is reducing the registration fee for the 2013-2014 registration 
year (July 1, 2013-June 30, 2014) to:
     $125 (plus $25 processing fee) for a small businesses or 
not-for-profit organizations; and
     $1300 (plus $25 processing fee) for all other businesses.
    These amounts represent a 50% reduction in the fee paid by a small 
business or not-for-profit organization and all other business 
categories. The one-year reductions are being applied to all 
registrants at an equal rate because an accumulation of de-obligations 
is the primary cause of the current unexpended balance in the HMEP 
Fund.
    Additionally, PHMSA is making an editorial change to Sec.  107.612 
to clarify the appropriate fee amounts; there are no substantive 
changes other than the addition of the fees for 2013-2014 and for 2014-
2015 and later.
    The Administrative Procedure Act provides that notice of a proposed 
rulemaking need not be published in the Federal Register ``when the 
agency for good cause finds (and incorporates the finding and a brief 
statement of the reasons therefor in the rules issued) that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' (See 5 U.S.C. 553(b)(3)(B)). For the same 
reasons, a final rule can become effective immediately (See 5 U.S.C. 
553(d)). PHMSA has found that it is unnecessary to provide notice and 
comment on the regulatory changes adopted in this rule as these 
amendments limit PHMSA's discretion and simply account for statutory 
requirements. In addition, it is impracticable to provide notice and 
comment on the regulatory changes adopted in this rule, as doing so 
would not permit these amendments to be effective and implemented for 
the 2013-2014 registration year. Further, it is contrary to the public 
interest to provide notice and comment because it potentially delays 
relief to entities that are entitled by statute to lower registration 
fees. Therefore, PHMSA is issuing this final rule without a prior 
notice of proposed rulemaking and making it effective immediately.

IV. Multi-Year Registrations

    PHMSA permits a person to register for up to three years in one 
registration statement. See 49 CFR 107.616(c).

[[Page 23505]]

PHMSA applies 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, the temporary 
decrease in registration fees in this final rule means that lower fees 
will be applied to any registrations paid in advance at the higher 
levels in effect at the time of payment. PHMSA will notify each 
registrant that will be eligible to request a refund for the 2013-2014 
registration year and issue refunds.

V. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is issued under the authority of the Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.). Section 5108 of the Federal hazmat law authorizes the 
Secretary of Transportation to establish a registration program to 
collect fees to fund the HM Grants Program. The 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.

B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This final 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 
rule is considered non-significant under the Regulatory Policies and 
Procedures of the Department of Transportation. See 44 FR 11034.
    To address the unexpended balance in the HM Fund, PHMSA is 
temporarily reducing registration fees for the 2013-2014 registration 
year. After the 2013-2014 registration year, the registration fees will 
return to 2012-2013 registration year levels. PHMSA will continue to 
evaluate the registration fee structure and may issue further 
regulations modifying the fee structure in the future pending the 
results of this evaluation and our outreach efforts to reduce de-
obligations.
    The temporary reduction in registration fees adopted by the final 
rule will amount to a one year, $13.2 million cost savings for 
industry. A revised fee of $125 (plus a $25 processing fee) for small 
businesses and not-for-profit organizations and $1300 (plus a $25 
processing fee) for all other businesses, collected from 40,375 
registrants (33,300 small businesses and not-for-profit organizations 
and 7,075 other-than-small businesses) for the 2013-2014 registration 
year will satisfy the statutory requirements. PHMSA considers this 
reduction equitable, since all registrants subject to the registration 
program would have their fee decreased by approximately 50 percent. A 
regulatory evaluation for this rule is available for review in the 
public docket.
    Executive Order 13563 is supplemental to and reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866 Regulatory Planning and Review of 
September 30, 1993. In addition, Executive Order 13563 specifically 
requires agencies to identify and consider regulatory approaches that 
reduce burden and maintain flexibility; and modify and streamline, 
existing regulations that are unclear. The regulatory approach adopted 
in this rulemaking will reduce the burden and provide flexibility for 
our stakeholders by offering a one year reduction of registration fees 
as well as modifying and simplifying our regulatory text by adding an 
easily understood fee table into the regulations.
    This final rule is designed to eliminate an unexpended balance 
(surplus) in the HMEP Fund of approximately $13.1 million dollars by 
reducing registration fees for all persons required to register for 
registration year 2013-2014. This final rule reduces the registration 
fee for the 2013-2014 registration year in accordance with Federal law 
and makes editorial changes to the associated regulatory text. It does 
not conflict with Executive Order 12866, Executive Order 13563, or DOT 
Regulatory Policies and Procedures.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (Federalism). There is 
no preemption of state fees on transporting hazardous materials that 
meet the conditions of 49 U.S.C. 5125(f). This rule does not impose 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 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 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, and, a tribal summary impact 
statement is not required.

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 all 
businesses required to register. 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 final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 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. Environmental Impact Analysis

    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

[[Page 23506]]

human environment. When developing potential regulatory requirements, 
PHMSA evaluates those requirements to consider the environmental impact 
of each amendment. Specifically, PHMSA evaluates the: risk of release 
and resulting environmental impact; risk to human safety, including any 
risk to first responders; longevity of the packaging; and if the 
proposed regulation would be carried out in a defined geographic area, 
the resources, especially any sensitive areas, and how they could be 
impacted by any proposed regulations.
    There are no significant environmental impacts associated with this 
final rule. This final rule reduces the registration fee for the 2013-
2014 registration year in accordance with Federal law and makes 
editorial changes to the associated regulatory text.

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) which may be 
viewed at http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

K. Executive Order 13609 and International Trade Analysis

    Under E.O. 13609, agencies must consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and we have 
assessed the effects of the final rule to ensure that it does not cause 
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is 
consistent with E.O. 13609 and PHMSA's obligations.

List of Subjects in 49 CFR Part 107

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

    In consideration of the foregoing, we amend 49 CFR part 107 as 
follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 is revised 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 31001; 49 CFR 1.81, 1.97.


0
2. Section 107.612 is revised to read as follows:


Sec.  107.612  Amount of fee.

    (a) For purposes of determining the applicable annual registration 
fee specified in paragraph (b) of this section, the following 
classification applies to each person required to register and pay a 
registration fee:
    (1) Small business. A person that qualifies as a small business, 
under criteria specified in 13 CFR part 121 applicable to the North 
American Industry Classification System (NAICS) code that describes 
that person's primary commercial activity.
    (2) Not-for-profit organization. An organization exempt from 
taxation under 26 U.S.C. 501(a).
    (3) Other than a small business or not-for-profit organization. 
Each person that does not meet the criteria specified in paragraph 
(a)(1) or (a)(2) of this section.
    (b) Each person subject to the requirements of this subpart must 
pay the processing fee specified in paragraph (c) of this section and 
the annual registration fee set forth in the following table:

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                                                                                                Other than small
                                                                              Not-for-profit   business or  not-
                   Registration year                       Small business      organization        for-profit
                                                                                                  organization
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2014-2015 and later....................................               $250               $250             $2,575
2013-2014..............................................                125                125              1,300
2012-2013, 2011-2012, 2010-2011........................                250                250              2,575
2009-2010, 2008-2009, 2007-2008, 2006-2007.............                250                250                975
2005-2006, 2004-2005, 2003-2004........................                125                125                275
2002-2003, 2001-2002, 2000-2001........................                275              (\1\)              1,975
1999-2000 and earlier..................................                250                250                250
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\1\ Fee appropriate for small or other than small business.

     (c) Each person submitting a registration statement must pay the 
following processing fee in addition to the registration fees specified 
in paragraph (b) of this section:
    (1) For registration years 2000-2001 and later, the processing fee 
is $25 for each registration statement filed. A single statement may be 
filed for one, two, or three registration years as provided in Sec.  
107.616(c).
    (2) For registration years 1999-2000 and earlier, the processing 
fee is $50 for each registration statement filed. A separate statement 
must be filed for each registration year.

    Issued in Washington, DC, on April 15, 2013 under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-09213 Filed 4-18-13; 8:45 am]
BILLING CODE 4910-60-P