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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 

# AGENCY:

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

# ACTION:

Final rule. 

# 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                               ( print 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                           ( print 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

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

# PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES 

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

Authority:49 U.S.C. 5101-5128, 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. 

2. In § 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: 

§ 107.606 

(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. 

* * * * *

§ 107.616 

3. In § 107.616, make the following changes: 

a. Amend the first sentence in paragraph (a) by removing the phrase “Except as provided in paragraph (d) of this section,”.       ( print page 24539)    

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] 

BILLING CODE 4910-60-P