[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Rules and Regulations]
[Pages 3993-4001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02293]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107 and 110
[Docket No. PHMSA-2015-0272 (HM-209A)]
RIN 2137-AF19
Hazardous Materials: Revisions to Hazardous Materials Grants
Requirements (FAST Act)
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: PHMSA is revising the Hazardous Materials Regulations
pertaining to the Hazardous Materials Grants Program and the Hazardous
Materials Emergency Preparedness Grant. This final rule aligns with the
Office of Management and Budget's Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards (``Uniform
Guidance'') and implements new requirements set forth by the Fixing
America's Surface Transportation (FAST) Act of 2015.
DATES:
Effective date: This rule is effective as of March 18, 2019.
Voluntary compliance date: Voluntary compliance with all amendments
is authorized as of February 14, 2019.
FOR FURTHER INFORMATION CONTACT: Shakira Mack, Chief, Hazardous
Materials Grants and Registration, (202) 366-1109,
[email protected], Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Comment Discussion
III. Section-by-Section Review
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
C. Executive Order 13771
D. Executive Order 13132
E. Executive Order 13175
F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Policies and Procedures
G. Paperwork Reduction Act
H. Regulation Identifier Number (RIN)
I. Unfunded Mandates Reform Act
J. Environmental Assessment
K. Privacy Act
L. Executive Order 13609 and International Trade Analysis
M. National Technology Transfer and Advancement Act
N. Executive Order 13211
List of Subjects
I. Background
On October 11, 2016, PHMSA published a notice of proposed
rulemaking (NPRM) [Docket No. PHMSA-2015-0272 (HM-209A); 81 FR 70067]
proposing changes to the Hazardous Materials Grants Program in 49 CFR
part 110. The NPRM proposed to align with guidance offered in the
Office of Management and Budget's (OMB) Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards (2 CFR part 200) (``Uniform Guidance''), as well as new
requirements set forth by the FAST Act of 2015 (Pub. L. 114-94;
December 4, 2015).
OMB's Uniform Guidance was codified in 2 CFR part 200 in an interim
final rule [79 FR 75867] on December 19, 2014. It streamlines the
Federal Government's guidance on grant awards, with the goal of
reducing administrative burden on grant recipients, as well as waste
and misuse of Federal funding. Publication of the Uniform Guidance
superseded the previous OMB circular guidance and requirements found in
49 CFR part 18. All Federal grants issued on or after December 26,
2014, were required to comply with these requirements.
The FAST Act was enacted December 4, 2015, to provide long-term
funding for transportation infrastructure planning and investment. The
FAST Act expanded funding appropriations for the Hazardous Materials
Emergency Preparedness (HMEP) Grant. The FAST Act also merged the HMEP
planning and training grant funding into a single grant fund, meaning
that grantees no longer need to complete separate grant applications
for their planning and training grant programs. Lastly, the FAST Act
added a new, competitive Community Safety Grant.
Historically, the Hazardous Materials Grants Program was comprised
of three grants: The HMEP Grant, the Supplemental Public Sector
Training (SPST) Grant, and the Hazardous Materials Instructor Training
(HMIT) Grant. These grants are funded by fees collected from hazardous
materials (hazmat) shippers and carriers who offer for transportation
or transport certain hazmat in intrastate, interstate, or foreign
commerce and who must register with the U.S. Department of
Transportation in accordance with 49 CFR part 107, subpart G. In 2015,
the FAST Act established a new Community Safety Grant Program funded by
Congressional appropriations. PHMSA awarded two
[[Page 3994]]
Community Safety Grants for the first time in fiscal year 2017.
This final rule revises part 110 for the codified HMEP Grant
requirements, reflecting changes mandated by the FAST Act, as proposed
in the NPRM, and revising regulatory citations to OMB's Uniform
Guidance in 2 CFR part 200. The requirements specific to the SPST,
HMIT, and Community Safety Grants are not codified, but are found at
https://www.phmsa.dot.gov/. PHMSA is also making a non-substantive
change to the registration payment address in part 107 to reflect
accurate PHMSA grant and registration program office information.
The HMEP Grant was established in 1990 by the Hazardous Materials
Transportation Uniform Safety Act (HMTUSA; Pub. L. 101-615). In 1993,
PHMSA's predecessor agency, the Research and Special Programs
Administration (RSPA), began issuing grants to assist States,
Territories, and Indian tribes to carry out emergency preparedness and
training activities in order to ensure communities could effectively
respond to transportation incidents involving hazmat. PHMSA's HMEP
Grants fund public and first responder planning efforts to improve
hazmat transportation incident response. This grant allows flexibility
to implement training and planning programs that address differing
needs based on demographics, emergency response capabilities, commodity
flow studies, and hazard analysis. Prior to 2009, the HMEP Grant
awarded $12.8 million annually; award amounts thereafter increased to
$21.9 million annually.
II. Comment Discussion
PHMSA received no in-scope comments in response to the NPRM, and is
adopting the proposed amendments except for certain modifications for
enhanced clarity and accuracy. The adopted changes and revisions are
discussed as follows in the section-by-section review.
III. Section-by-Section Review
Part 107
Section 107.616
Section 107.616 details the payment procedures for the registration
of persons who offer or transport hazmat in accordance with part 107
subpart G. This final rule revises paragraph (a) of Sec. 107.616 to
update the P.O. Box mailing address for registration payments. The new
address is: U.S. Department of Transportation--Hazardous Materials,
P.O. Box 6200-01, Portland, OR 97228-6200. This final rule also updates
the web address for electronic payments. While not originally proposed
in the NPRM, these changes are non-substantive and are necessary to
ensure that information in the regulations pertaining to the PHMSA
Grant and Registration Program office are up to date and readily
understood. These revisions will ensure that there is no confusion on
where to send registration payments, and therefore, PHMSA considers it
within the scope of this rulemaking.
Part 110
Introduction
PHMSA is revising part 110 to reflect HMEP Grant requirements and
is not including the proposed language from the NPRM related to HMIT,
SPST, and Community Safety Grants. This change will ensure consistency
and clarity in the regulations. The following section-by-section review
highlights instances of this change.
Section 110.1
Section 110.1 outlines the purpose of part 110. This final rule
amends Sec. 110.1 to align with OMB's Uniform Guidance (the
government-wide framework for grants management) found in 2 CFR part
200 and makes editorial amendments. In this final rule, PHMSA is not
including the proposed language addressing nonprofit organizations
because they are not HMEP Grant recipients. PHMSA notes, however, that
inter-tribal coalitions of federally recognized tribes, even those
incorporated as a nonprofit corporation under State law, are eligible
HMEP Grant recipients. Lastly, although not proposed in the NPRM, this
final rule makes two minor editorial amendments and adds a sentence
directing stakeholders to the following website for information on the
HMIT, SPST, and Community Safety Grant Programs: https://www.phmsa.dot.gov/. Because these were clarifying amendments, PHMSA
does not believe that notice and comment were required.
Section 110.5
Section 110.5 outlines the scope of the Hazardous Materials Grants
Program in part 110. PHMSA is not adopting the NPRM's proposed language
in paragraph (a) for nonprofit organizations because they are not
eligible for HMEP Grants. Note that inter-tribal coalitions of
federally recognized tribes, even those incorporated as a nonprofit
corporation under State law, are eligible HMEP Grant recipients.
As proposed in the NPRM, this final rule revises paragraph (b) to
reflect the correct reference citation for OMB's Uniform Guidance,
which is now found in 2 CFR part 200. Additionally, this section
reflects the current name for OMB's Uniform Guidance, which is
``Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards'' (previously titled ``Uniform
Administrative Requirements for Grants and Cooperative Agreements'').
Although not proposed in the NPRM, this change is within the scope of
this rulemaking to align with the 2 CFR part 200.
In this final rule, PHMSA is adding a website in paragraph (c) to
locate and obtain electronic versions of standard forms and OMB
circulars referenced throughout 2 CFR part 200. The website (see
https://www.grants.gov/web/grants/forms.html) is revised from the NPRM,
because the website proposed in the NPRM (https://www.whitehouse.gov/omb/grants_forms) no longer posts the standard forms or relevant OMB
circulars. Alternatively, and as currently specified in the Hazardous
Materials Program requirements, a person may obtain copies by
contacting the Grants Chief in PHMSA's Office of Hazardous Materials
Safety. Contact information for the program office is available at
PHMSA's website (https://www.phmsa.dot.gov/). The change to the PHMSA
office title is adopted in this final rule as was proposed in the NPRM,
with additional minor editorial amendments.
Section 110.10
Section 110.10 specifies to whom part 110 and the HMEP Grant apply.
This final rule amends the title of this section to ``Administering the
hazardous materials emergency preparedness grants,'' as opposed to the
proposed title from the NPRM (``Administering hazardous materials
grants'') in an effort to clarify that the regulations are specific to
the HMEP Grant. As proposed in the NPRM, PHMSA is revising the language
in Sec. 110.10 to include Territories and is removing outdated
language specifying which entities may apply for which grants. PHMSA is
not adopting the proposed language for nonprofit organizations because
they are not eligible for the HMEP Grant. Note that inter-tribal
coalitions of federally recognized tribes, even those incorporated as a
nonprofit corporation under State law, are eligible HMEP Grant
recipients.
Section 110.20
Section 110.20 outlines the definitions applicable to part 110. As
proposed in the NPRM, the introductory language is amended to reflect
that
[[Page 3995]]
unless defined in part 110, all terms defined in 49 U.S.C. 5102 are
used in their statutory meaning and all terms defined in 2 CFR part
200, with respect to administrative requirements for grants, are used
as defined therein. In addition, the remaining language in Sec. 110.20
defines the other terms used in part 110. Finally, the definition of
Associate Administrator is revised, the definition of Public sector
employee is added, and the definition of Indian country is deleted, as
proposed in the NPRM.
PHMSA is not adopting the proposed definition of Nonprofit
organizations in this final rule because they are not eligible for HMEP
Grants and therefore not referenced in part 110. Note that inter-tribal
coalitions of federally recognized tribes, even those incorporated as a
nonprofit corporation under State law, are eligible HMEP Grant
recipients. PHMSA is also not adopting the proposed definitions of
Tribal Emergency Planning Committee (TEPC) and Tribal Emergency
Response Committee (TERC) because they are not referenced in part 110,
and are therefore unnecessary to adopt.
Furthermore, while not proposed in the NPRM, PHMSA is removing the
definitions of Budget Period, Cost review, Indian Tribe, Local
Emergency Planning Committee (LEPC), Project, Project manager, Project
officer, Project period, State Emergency Response Commission (SERC),
and Statement of Work in this final rule. These definitions are either
not referenced in part 110 or are already defined in 2 CFR part 200.
Therefore, PHMSA determined that it is unnecessary to duplicate the
definitions in part 110 and their removal will increase clarity and
avoid the need for a conforming rulemaking by PHMSA should revisions be
made to the definitions in 2 CFR part 200.
Lastly, while not proposed in the NPRM, PHMSA is revising the
definition of Allowable costs and Political subdivision, to better
reflect 2 CFR part 200 and to ensure consistency within part 110.
Section 110.30
Section 110.30 addresses application requirements for the HMEP
Grant. In order to more appropriately communicate the requirements of
this section, and as proposed in the NPRM, PHMSA is amending the title
of Sec. 110.30 to ``Hazardous materials emergency preparedness grant
application.'' Additionally, as proposed in the NPRM, PHMSA is amending
paragraph (a) to remove specific application requirements, instead
referencing that instructions are available in the applicable Notice of
Funding Opportunity and application kit. As proposed, PHMSA is also
amending paragraph (a) to require electronic submissions of grant
applications.
Further, PHMSA discovered an editorial error in the title of grant
announcements. Therefore, in this final rule, PHMSA is revising
paragraph (a) to specify that an HMEP grant announcement is called a
``Notice of Funding Opportunity,'' instead of a ``Notice of Funding
Announcement.'' Lastly, although not originally proposed in the NPRM,
PHMSA is removing the reference to the website ``http://www.grants.gov'' and is directing the reader to submit the grant
application package at ``the OMB designated website.'' This allows for
future regulatory flexibility if the submission website were to change.
Currently, HMEP Grant applications are submitted at http://www.grants.gov. Applicants can always contact the Grants Chief to
verify the correct website for submittal of a grant application
package.
In the NPRM, PHMSA proposed to remove and reserve paragraphs (b)
and (c) because these requirements are now found in 2 CFR part 200 and
the HMEP Grant is no longer separated between planning and training.
However, in this final rule, PHMSA is removing these paragraphs
(instead of removing and reserving), as it is not anticipated that
these paragraphs will be added in future rulemakings. This change
better aligns with required regulatory drafting practices in the Office
of the Federal Register Document Drafting Handbook. Because of this
change, the paragraph header ``(a) General'' is also removed.
Section 110.40
Section 110.40 addresses activities that may be eligible for HMEP
Grant funding. This section is revised as proposed in the NPRM with the
exception that in this final rule, PHMSA is making minor editorial
amendments to the proposed language in paragraphs (a), (b), (g), and
(m). These amendments provide additional clarity and better align with
2 CFR part 200. For example, paragraph (g) is revised to read as ``[t]o
train public sector employees to respond to hazardous materials
transportation accidents and incidents'' (previously ``[t]o train
public sector employees to respond to accidents and incidents involving
the transportation of hazardous material'') and paragraph (m) is
revised to read as ``[a]dditional hazardous materials emergency
preparedness activities not otherwise described in this section that
the Associate Administrator deems appropriate under the grant
agreement'' (previously ``[f]or additional activities the Associate
Administrator deems appropriate to implement the scope of work for the
proposed project and approved in the grant.'').
Furthermore, as proposed in the NPRM, paragraphs (a) and (b) are
revised to address those activities previously described in paragraphs
(a)(1) and (2). Paragraphs (a)(3) through (6) are now paragraphs (c)
through (f), and paragraphs (b)(1) through (5) are now paragraphs (g)
through (l). As the activities in (a)(7) and (b)(6) are nearly
identical, the duplicative language is combined in paragraph (m).
Furthermore, as proposed in the NPRM, the language in these paragraphs
is revised for consistency, and the term ``Territory'' is added in
paragraph (k).
Section 110.50
Section 110.50 addresses the requirements and procedures for
Federal funding for both pre- and post-award purchases. Notably, 2 CFR
200.305 payment provisions state that a non-Federal entity:
[M]ust be paid in advance, provided it maintains or demonstrates the
willingness to maintain both written procedures that minimize the
time elapsing between the transport of funds and disbursement by the
non-Federal entity, and financial management systems that meet the
standards for fund control and accountability as established in this
part. Advance payments to a non-Federal entity must be limited to
the minimum amounts needed and be timed to be in accordance with the
actual, immediate cash requirements of the non-Federal entity in
carrying out the purpose of the approved program or project.
While 2 CFR part 200 does not specify funding techniques for
States, advanced payments to State grantees would more effectively
focus Federal resources on improving performance and outcomes while
ensuring the financial integrity of taxpayer dollars in partnership
with non-Federal stakeholders.
In this final rule, paragraph (a) is revised to adopt provisions
that allow grantees to receive reimbursement of pre-award costs, as
proposed in the NPRM. However, PHMSA is not adopting the proposed first
two sentences of paragraph (a) because they are duplicative of the 2
CFR 200.458 definition of Pre-award costs. Additionally, as proposed in
the NPRM, PHMSA is revising paragraph (b) to use more appropriate
language, revising ``reimbursement'' to ``payment,'' and specifying
that for additional grant funds the amendment submitted must be a
``supplemental amendment.''
To better align Sec. 110.50 with 2 CFR part 200, maintain
consistency
[[Page 3996]]
throughout part 110, and provide clarity, PHMSA's final rule includes
several changes to language proposed in the NPRM. PHMSA is revising
``grantee'' to ``recipient,'' ``project objectives'' to ``activities,''
``award'' to ``grant'' or ``agreement,'' ``competing'' to
``competitive,'' and ``non-competing'' to ``non-competitive,'' as
appropriate, to ensure Sec. 110.50 remains consistent with other
changes in this final rule. In addition, PHMSA is replacing language in
the last sentence of paragraph (a)(1) from ``time frame or in any way
adversely affect the conduct of the project'' to ``period of
performance'' because this terminology is more consistent with 2 CFR
part 200. Furthermore, PHMSA is revising ``budget period'' in paragraph
(a)(2) to ``period of performance'' as they have the same intended
meaning and because ``period of performance'' is defined in 2 CFR part
200.
PHMSA is also revising paragraph (a)(2) by removing the second half
of the sentence and removing paragraph (b)(1) because they are
duplicative of requirements addressed in 2 CFR part 200. Therefore,
instead of redesignating paragraph (c) as paragraph (b)(2) as proposed
in the NPRM, in this final rule PHMSA is merging paragraph (c) with the
introductory sentence in paragraph (b). Lastly, paragraph (b) is
revised to read as ``Payments may not be made for activities not
approved in the grant agreement'' (proposed in the NPRM as ``Payment
may not be made for a project plan unless approved in the grant
award''), because it simplifies the intended meaning of the
requirement, and ensures consistency with other changes in this final
rule. Though these changes were not proposed in the NPRM, they ensure
that the regulations are more consistent with 2 CFR part 200 and
therefore, are within the scope of this rulemaking.
Section 110.60
Section 110.60 addresses funding requirements for direct and
indirect costs and funds that are acceptable or unacceptable for
matching and cost sharing purposes. PHMSA inadvertently did not include
this section in the NPRM, although there was a citation reference to 49
CFR part 18. Because the scope of this rulemaking is to remove and
replace the outdated 49 CFR part 18 requirements with 2 CFR part 200
requirements, PHMSA is revising this section without notice and comment
as a conforming amendment consistent with similar revisions made within
49 CFR part 110.
Consistent with other changes in the final rule, in the first
sentence of paragraph (a), ``recipient agency'' is revised as
``recipient'' and ``activities covered under the grant award program''
is revised as ``activities approved in the grant agreement.'' These
changes ensure clarity, consistency, and reflect current PHMSA Grants
Program terminology.
Furthermore, PHMSA notes that most of the cost sharing requirements
of Sec. 110.60 are addressed in 2 CFR part 200. In order to ensure
that Sec. 110.60 does not impose additional requirements, or
requirements that differ from 2 CFR part 200, PHMSA is removing all
regulatory text except the revised first sentence of paragraph (a), as
that sentence sets out a unique requirement of the HMEP Grant. Because
grantees are already subject to the cost sharing requirements of 2 CFR
part 200, PHMSA does not believe the removal of this text imposes any
new requirements on grantees, and thus does not warrant notice and
comment.
Lastly, to maintain consistency with other changes in this final
rule, PHMSA is revising the title of the section to ``Cost sharing,''
from its previous title ``Cost sharing for planning and training,''
because the HMEP Grant is no longer separated between planning and
training.
Section 110.70
Section 110.70 outlines the requirements for a grant recipient to
account and manage funds provided in a grant award. Although PHMSA
proposed a number of revisions to better align this section with the
financial and program management requirements outlined in 2 CFR
200.302, PHMSA has determined that this section does not include any
requirements that are not already required of a grantee in 2 CFR part
200. Therefore, to avoid redundancy and ensure consistency with 2 CFR
part 200, in this final rule, PHMSA is removing and reserving Sec.
110.70. While not proposed in the NPRM, the scope of this rulemaking is
to align 49 CFR part 110 with the requirements of 2 CFR part 200.
Therefore, PHMSA believes that this change is consistent with other
changes in this final rule, and is within the scope of this rulemaking.
Section 110.80
Section 110.80 outlines the requirements for grant recipients to
use procurement procedures and practices. Although PHMSA proposed
amendments in the NPRM to update regulatory requirements and direct
grant recipients to 2 CFR part 200 for procurement standards in Sec.
110.80, PHMSA has identified that there were no specific agency
procurement standards in this section. Therefore, to avoid redundancy
and ensure consistency with 2 CFR part 200, in this final rule, PHMSA
is removing and reserving this section. While not proposed in the NPRM,
the scope of this rulemaking is to align 49 CFR part 110 with the
requirements of 2 CFR part 200. Therefore, PHMSA believes that this
change is consistent with other changes in this final rule, and is
within the scope of this rulemaking.
Section 110.90
Section 110.90 outlines grant monitoring, reporting, and record
retention requirements for recipients. In the NPRM, PHMSA proposed to
make amendments to align with requirements in 2 CFR part 200. However,
following publication of the NPRM, PHMSA determined that the proposed
language in Sec. 110.90 did not differ from the requirements in 2 CFR
part 200. Therefore, for greater consistency and to avoid redundancy,
in this final rule, PHMSA is removing and reserving Sec. 110.90. While
not proposed in the NPRM, the scope of this rulemaking is to align 49
CFR part 110 with the requirements of 2 CFR part 200. Therefore, PHMSA
believes that this change is consistent with other changes in this
final rule, and is within the scope of this rulemaking.
Section 110.100
Section 110.100 outlines requirements for failure to comply with
any portion of the grant agreement. In this final rule, PHMSA is
revising Sec. 110.100 as proposed in the NPRM, except that PHMSA is
not revising the 49 CFR part 18 references to 2 CFR part 200
references. Instead, PHMSA is removing those references because, as
outlined in the rulemaking scope (see Sec. 110.5), grantees are
subject to all of 2 CFR part 200, and therefore the references are
redundant. Furthermore, this change does not remove any regulatory
requirements and is consistent with other changes in this final rule.
PHMSA noted that references to ``grant award'' in the NPRM should
instead say ``grant agreement'' to better reflect current requirements
and OMB's Uniform Guidance. Additionally, ``recipient agency'' is
revised to ``recipient'' to allow more regulatory flexibility. While
these changes were not proposed in the NPRM, they clarify the current
regulatory requirements and are within the scope of this rulemaking.
Section 110.110
Section 110.110 outlines requirements for the closure of a grant,
including
[[Page 3997]]
when a grant is considered closed and requirements for report
submissions. PHMSA notes that the revised section title ``Post-award
requirements'' more appropriately reflects the requirements of this
section, as opposed to the title proposed in the NPRM (``After-grant
requirements'').
As proposed in the NPRM, the title of Associate Administrator is
revised to reflect current terminology. PHMSA is not making the
proposed change to replace the outdated citation of subpart D of 49 CFR
part 18 to 2 CFR part 200 because, as identified in the scope of part
110 (see Sec. 110.5), grantees are subject to 2 CFR part 200
requirements and this reference is duplicative. While not proposed in
the NPRM, PHMSA is also revising instances of ``award'' to ``grant,''
and ``project manager'' is revised to ``recipient,'' consistent with
other changes in this final rule.
Section 110.120
Section 110.120 outlines how a recipient may request deviation from
the non-statutory provisions of part 110. For deviation requests, PHMSA
is revising the mailing address to an email address, as proposed in the
NPRM. Although not proposed in the NPRM, PHMSA revised ``recipient
agencies'' to ``recipient'' in this final rule to better align Sec.
110.120 with 2 CFR part 200 and to maintain regulatory consistency. In
this final rule, although not proposed in the NPRM, PHMSA is also
removing reference to part 110, as the language was redundant.
Section 110.130
Section 110.130 addresses who is responsible for resolving any
disputes. As proposed in the NPRM, the position titles of the PHMSA
Hazardous Materials Grants Program staff are updated, with a correction
to the title of ``Grant Specialist'' to ``Grant Management
Specialist.'' Additionally, as proposed in the NPRM, ``Administrator,
PHMSA'' is revised to read as ``Associate Administrator.'' These
regulatory changes reflect current operational titles. If a grantee has
further questions regarding who their respective contact is within
PHMSA, they may wish to contact the Hazardous Materials Grants Program
office at 202-366-1109.
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of Federal
hazardous materials transportation law (Federal hazmat law; 49 U.S.C.
5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the
Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous materials in
intrastate, interstate, and foreign commerce. Section 5107, as amended,
establishes a competitive program for making grants to nonprofit
organizations for conducting national outreach and training programs to
assist communities in preparing for and responding to accidents and
incidents involving the transportation of hazardous materials,
including Class 3 flammable liquids by rail; and training State and
local personnel responsible for enforcing the safe transportation of
hazardous materials, including Class 3 flammable liquids.
Section 5108 permits the Secretary to collect registration fees
from people transporting certain quantities of hazardous materials for
deposit into an account used to fund the HMEP Grant Program. Section
5116, as amended, authorizes the Secretary to make grants to States and
Indian tribes by combining planning and training grants, and to create
supplemental training grants to national nonprofit fire service
organizations. The Secretary has delegated these authorizations to
PHMSA's Administrator (see 49 CFR 1.97(b)). This final rule revises the
regulations as they pertain to hazardous materials public sector
training and planning grants.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is considered a non-significant regulatory action
under section 3(f) of Executive Order 12866, ``Regulatory Planning and
Review,'' [58 FR 51735 (Oct. 4, 1993)] and was not reviewed by OMB.
This final rule is considered a non-significant rule under the DOT
Regulatory Policies and Procedures of February 26, 1979 [44 FR 11034].
This final rule does not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; rather, it revises regulations to
comply with the current Federal statute and guidance, as well as PHMSA
policies and procedures.
PHMSA evaluated the Hazardous Materials Grants Program regulations
and determined that they are outdated and, in part, unnecessarily
burdensome. The current regulation citations for grant management are
out-of-date and are superseded by 2 CFR part 200. Therefore, PHMSA is
updating 49 CFR part 110 to reflect current Federal statute and
guidance, as well as PHMSA policies and procedures. This final rule
does not generate any quantifiable cost or cost savings, however it
does reduce burden on grantee applicants. Specifically, this final rule
removes out-of-date citations, revises definitions and other
regulations that do not align with current statutory requirements, OMB
guidance, or PHMSA policies and procedures. Therefore, these changes
will ease potential burden on any stakeholders reviewing and complying
with 49 CFR part 110. As no in-scope public comments were received,
PHMSA believes that the change in regulatory requirements will not
impose undue burden on applicable parties.
C. Executive Order 13771
This final rule is considered an Executive Order 13771 deregulatory
action, as explained above.
D. Executive Order 13132
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism'') [64 FR
43255 (Aug. 10, 1999)] and the presidential memorandum on
``Preemption'' [74 FR 24693 (May 22, 2009)]. Executive Order 13132
requires agencies to assure meaningful and timely input by State and
local officials in the development of regulatory policies that may have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' This
final rule does not propose any regulation that 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. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.
The Federal hazmat law, 49 U.S.C. 5101-5128, contains an express
preemption provision [49 U.S.C. 5125(b)] that preempts State, local,
and Indian tribal requirements on the following subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; and
(5) The design, manufacture, fabrication, inspection, marking,
[[Page 3998]]
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material in commerce.
This final rule does not address any of these covered subjects.
E. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' [65 FR 67249 (Nov. 9,
2000)] which requires agencies to assure meaningful and timely input
from Indian tribal government representatives in the development of
rules that significantly or uniquely affect Tribal communities by
imposing ``substantial direct compliance costs'' or ``substantial
direct effects'' on such communities or that affect the relationship
and distribution of power between the Federal Government and Indian
tribes. This final rule does not have such implications, as Tribes are
currently subject to the statutory requirements that PHMSA is adopting
in the regulations. Therefore, the funding and consultation
requirements of Executive Order 13175 do not apply.
F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. There are
no costs to small entities associated with this final rule. The
amendments herein are to clarify and simplify existing regulations
surrounding PHMSA-issued grants and to comply with current statutes.
The grant recipients affected by this final rule are States,
Territories, and Indian tribes. These entities currently comply with
the statutory requirements that PHMSA is incorporating in the
regulations; therefore, no burden is added. Consequently, PHMSA
certifies that this final rule does not have a significant economic
impact on a substantial number of small entities.
G. Paperwork Reduction Act
PHMSA currently has an approved information collection package
under OMB Control Number 2137-0586 titled, ``Hazardous Materials Public
Sector Training & Planning Grants,'' with an expiration date of June
29, 2019. This final rule will not result in an increase in the time
spent to apply, maintain, and close out a grant application cycle and
therefore, does not necessitate the revision of this information
collection package in either the annual burden or cost for changes
under part 110.
Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it was approved by OMB and
displays a valid OMB control number. Regulations implementing the
Paperwork Reduction Act of 1995 require that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requirements (see Title 5 CFR
1320.8(d)). We received no in-scope comments associated with this
rulemaking.
H. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulatory and
Deregulatory Actions (``Unified Agenda''). The Regulatory Information
Service Center publishes the Unified Agenda in the Spring and the Fall
of each year. The RIN contained in the heading of this document can be
used to cross-reference this action with the Unified Agenda.
I. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$155 million or more to either State, local, or Tribal governments, in
the aggregate, or to the private sector and is the least burdensome
alternative that achieves the object of the rulemaking.
J. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), and implementing regulations by the Council on
Environmental Quality (40 CFR part 1500) require Federal agencies to
consider the consequences of major Federal actions and to prepare a
detailed statement on actions that significantly affect the quality of
the human environment.
This final rule is procedural in nature and revises the regulations
pertaining to the Hazardous Materials Grant Program, which generally
supports state and tribal governments in emergency preparedness and
hazmat safety training. The regulatory changes in this final rule
reflect current Federal statute and guidance, as well as PHMSA's
policies and procedures. Therefore, PHMSA has determined that the
implementation of the final rule will not have a significant impact on
the quality of the human environment.
If PHMSA took no action and opted to not make revisions to reflect
current Federal statute and guidance and PHMSA's policies and
procedures, PHMSA would not expect a different environmental outcome.
However, with no action, PHMSA's grant program would not get the
benefit of a more streamlined and efficient process, which is in place
to reduce threats to the human environment from hazmat incidents.
In developing this final rule, PHMSA sought comment from the
following modal partners:
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
United States Coast Guard
PHMSA did not receive any adverse comments on the amendments in
this final rule from these Federal agencies. In addition, PHMSA did not
receive any in-scope public comments regarding the environmental impact
of this final rule.
K. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit and including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS) which can be reviewed at
www.dot.gov/privacy.
L. Executive Order 13609 and International Trade Analysis
Under Executive Order 13609, ``Promoting International Regulatory
Cooperation,'' [77 FR 26413 (May 4, 2012)] 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. This final rule does not impact international trade.
[[Page 3999]]
M. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs Federal agencies to use voluntary consensus
standards in their regulatory activities unless doing so is
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, test methods, or performance requirements) that are
developed or adopted by voluntary consensus standards bodies. This
final rule makes revisions to PHMSA Hazardous Materials Grants Program
requirements consistent with current Federal statute and guidance, as
well as PHMSA policies and procedures; it does not involve use of
voluntary consensus standards.
N. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' [66 FR
28355 (May 22, 2001)] requires Federal agencies to prepare a Statement
of Energy Effects for any ``significant energy action.'' A
``significant energy action'' is defined as any action by an agency
(normally published in the Federal Register) that promulgates, or is
expected to lead to the promulgation of, a final rule or regulation
(including a notice of inquiry, ANPRM, and NPRM) that (1)(i) is a
significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse
effect on the supply, distribution, or use of energy; or (2) is
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action.
PHMSA has evaluated this final rule in accordance with Executive
Order 13211 and determined that it will not have a significant adverse
effect on the supply, distribution, or use of energy. Consequently,
PHMSA has determined that this regulatory action is not a ``significant
energy action'' within the meaning of Executive Order 13211.
List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 110
Disaster assistance, Education, Grant programs--environmental
protection, Grant programs--Indians, Hazardous materials
transportation, Hazardous substances, Indians, Reporting and
recordkeeping requirements.
In consideration of the foregoing, PHMSA amends 49 CFR chapter I as
follows:
PART 107--HAZARDOUS MATERIALS PUBLIC SECTOR TRAINING AND PLANNING
GRANTS
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; Pub. L. 104-121, sections 212-213; Pub. L 104-134, section 31001;
Pub. L. 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and
1.97.
0
2. In Sec. 107.616, revise paragraph (a) to read as follows:
Sec. 107.616 Payment procedures.
(a) 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, P.O. Box 6200-01,
Portland, OR 97228-6200, or submit the statement and payment
electronically through the Department's e-Commerce internet site.
Access to this service is provided at https://www.phmsa.dot.gov/hazmat/registration. A registrant required to file an amended registration
statement under Sec. 107.608(c) of this subpart must mail it to the
same address or submit it through the same internet site.
* * * * *
PART 110--HAZARDOUS MATERIALS PUBLIC SECTOR TRAINING AND PLANNING
GRANTS
0
3. The authority citation for part 110 is revised to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.97.
0
4. Revise Sec. 110.1 to read as follows:
Sec. 110.1 Purpose.
This part sets forth procedures for grants to States, Territories,
and Indian tribes to support emergency planning and training to respond
to hazardous materials emergencies, particularly those involving
transportation. Grants may also be used to enhance the implementation
of the Emergency Planning and Community Right-to-Know Act of 1986 (42
U.S.C. 11001 et seq.). For information regarding the Hazardous
Materials Instructor Training, Supplemental Public Sector Training, and
Community Safety grants, please refer to PHMSA's website at: https://www.phmsa.dot.gov/.
0
5. Revise Sec. 110.5 to read as follows:
Sec. 110.5 Scope.
(a) This part applies to States, Territories, and Indian tribes and
contains the program requirements for public sector grants to support
hazardous materials emergency planning and training efforts.
(b) The requirements contained in 2 CFR part 200 ``Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards,'' apply to grants issued under this part.
(c) Copies of standard forms and OMB circulars referenced in this
part are available at https://www.grants.gov/web/grants/forms.html or
from the Grants Chief, Office of Hazardous Materials Safety, Pipeline
and Hazardous Materials Safety Administration, U.S. Department of
Transportation, East Building, 1200 New Jersey Avenue SE, Washington,
DC 20590-0001.
0
6. Revise Sec. 110.10 to read as follows:
Sec. 110.10 Administering the hazardous materials emergency
preparedness grants.
This part applies to States, Territories, and Indian tribes.
0
7. Revise Sec. 110.20 to read as follows:
Sec. 110.20 Definitions.
Unless defined in this part, all terms defined in 49 U.S.C. 5102
are used in their statutory meaning and all terms defined in 2 CFR part
200 with respect to administrative requirements for grants are used as
defined therein. Other terms used in this part are defined as follows:
Allowable costs means those costs that are: Eligible, reasonable,
necessary, and allocable to the activities permitted by the appropriate
Federal cost principles, and approved in the grant.
Associate Administrator means the Associate Administrator for
Hazardous Materials Safety, Pipeline and Hazardous Materials Safety
Administration or a person designated by the Associate Administrator.
National curriculum means the curriculum required to be developed
under 49 U.S.C. 5115 and necessary to train public sector emergency
response and preparedness teams, enabling them to comply with
performance standards as stated in 49 U.S.C. 5115(c).
Political subdivision means a county, municipality, city, town,
township, local public authority (including any public and Indian
housing agency under the United States Housing Act of 1937), school
district, special district, intrastate district, council of governments
(whether or not incorporated as a nonprofit corporation under State
law), any other regional or
[[Page 4000]]
interstate government entity, or any agency or instrumentality of a
local government.
Public sector employee means an individual employed by a State,
political subdivision of a State, Territory, or Indian tribe and who
during the course of employment has responsibilities related to
responding to an accident or incident involving the transportation of
hazardous material, including an individual employed by a State,
political subdivision of a State, Territory, or Indian tribe as a
firefighter or law enforcement officer and an individual who volunteers
to serve as a firefighter for a State, political subdivision of a
State, Territory, or Indian tribe.
0
8. Revise Sec. 110.30 to read as follows:
Sec. 110.30 Hazardous materials emergency preparedness grant
application.
An application must comply with the applicable Notice of Funding
Opportunity that will include or reference forms approved by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act of
1980 (44 U.S.C. 3502). Applicants are required to electronically submit
application packages at the OMB designated website. Applications must
adhere to the instructions outlined in the Notice of Funding
Opportunity and application kit.
0
9. Revise Sec. 110.40 to read as follows:
Sec. 110.40 Activities eligible for hazardous materials emergency
preparedness grant funding.
Eligible applicants may receive funding for the following
activities:
(a) To develop, improve, and implement emergency plans required
under the Emergency Planning and Community Right-to-Know Act of 1986,
as well as exercises that test the emergency plan. To enhance emergency
plans to include hazard analysis, as well as response procedures for
emergencies involving transportation of hazardous materials.
(b) To determine commodity flow patterns of hazardous materials
within a State, between a State and another State, Territory, or Tribal
lands, and develop and maintain a system to keep such information
current.
(c) To determine the need for regional hazardous materials
emergency response teams.
(d) To assess local response capabilities.
(e) To conduct emergency response drills and exercises associated
with emergency preparedness plans.
(f) To provide for technical staff to support the planning effort.
(g) To train public sector employees to respond to hazardous
materials transportation accidents and incidents.
(h) To determine the number of public sector employees employed or
used by a political subdivision who need the proposed training and to
select courses consistent with national consensus standards or the
National Curriculum.
(i) To deliver comprehensive preparedness and response training to
public sector employees, which may include design and delivery of
preparedness and response training to meet specialized needs, and
financial assistance for trainees and for the trainers, if appropriate,
such as tuition, travel expenses to and from a training facility, and
room and board while at the training facility.
(j) To deliver emergency response drills and exercises associated
with training, a course of study, and tests and evaluation of emergency
preparedness plans.
(k) To pay expenses associated with training by a person (including
a department, agency, or instrumentality of a State or political
subdivision thereof, a Territory, or an Indian tribe) and activities
necessary to monitor such training including, but not limited to
examinations, critiques, and instructor evaluations.
(l) To maintain staff to manage the training effort designed to
result in increased benefits, proficiency, and rapid deployment of
local and regional responders.
(m) Additional hazardous materials emergency preparedness
activities not otherwise described in this section that the Associate
Administrator deems appropriate under the grant agreement.
0
10. Revise Sec. 110.50 to read as follows:
Sec. 110.50 Disbursement of grant funds.
(a) Pre-award costs. (1) PHMSA expects the recipient to be fully
aware that pre-award costs result in borrowing against future support
and that such borrowing must not impair the recipient's ability to
accomplish the activities in the approved period of performance.
(2) A recipient may, at its own risk, incur pre-award costs to
cover costs up to 90 days before the beginning date of the initial
period of performance.
(3) The incurrence of pre-award costs in anticipation of a
competitive or non-competitive grant imposes no obligation on PHMSA
under any circumstances, including in the event of:
(i) The absence of appropriations;
(ii) A grant is not subsequently being made; or
(iii) A grant being made for a lesser amount than the recipient
anticipated.
(b) Payments may not be made for activities not approved in the
grant agreement. If a recipient seeks additional grant funds, the
supplemental amendment request will be evaluated on the basis of needs,
performance, and availability of grant funds. An existing grant is not
a commitment of future funding.
0
11. Revise Sec. 110.60 to read as follows:
Sec. 110.60 Cost sharing.
The recipient must provide 20 percent of the direct and indirect
costs of all activities approved in the grant agreement with non-
Federal funds.
0
12. Remove and reserve Sec. Sec. 110.70, 110.80, and 110.90.
Sec. Sec. 110.70, 110.80, and 110.90 [Removed and Reserved]
0
13. Revise Sec. 110.100 to read as follows:
Sec. 110.100 Enforcement.
If a recipient fails to comply with any term of the grant
agreement, a noncompliance action may be taken. The recipient will have
the opportunity to object and provide information and documentation
challenging the suspension or termination action. Costs incurred by the
recipient during a suspension or after termination of the grant
agreement are not allowable unless the Associate Administrator
authorizes it in writing. Grant agreements may also be terminated in
whole or in part with the consent of the recipient at any agreed upon
effective date, or by the recipient upon written notification.
0
14. Revise Sec. 110.110 to read as follows:
Sec. 110.110 Post-award requirements.
The Associate Administrator will close out the grant upon
determination that all applicable administrative actions and all
required work of the grant are complete. The recipient must submit all
financial, performance, and other reports required as a condition of
the grant within 90 days after the expiration or termination of the
grant. This time frame may be extended by the Associate Administrator
for cause.
0
15. Revise Sec. 110.120 to read as follows:
Sec. 110.120 Deviation from this part.
Recipients may request a deviation from the non-statutory
provisions of this part. The Associate Administrator will respond to
such requests in writing. If appropriate, the decision will be included
in the grant agreement. Request for deviations from this part
[[Page 4001]]
must be submitted electronically to the Grants Chief at
[email protected].
0
16. Revise Sec. 110.130 to read as follows:
Sec. 110.130 Disputes.
Disputes should be resolved at the lowest level possible, beginning
with the Grants Management Specialist, the Grants Team Lead, and the
Grants Chief. If an agreement cannot be reached, the Associate
Administrator will serve as the dispute resolution official, whose
decision will be final.
Issued in Washington, DC, on February 8, 2019 under authority
delegated in 49 CFR part 1.97.
Howard R. Elliott,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2019-02293 Filed 2-13-19; 8:45 am]
BILLING CODE 4910-60-P