[Federal Register Volume 60, Number 99 (Tuesday, May 23, 1995)]
[Rules and Regulations]
[Pages 27231-27233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12658]



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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 107

[Docket No. HM-208B, Amdt. No. 107-34]
RIN 2137-AC58


Hazardous Materials Transportation Registration and Fee 
Assessment Program

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: RSPA is maintaining the current annual registration fee of 
$300 (which includes a $50 processing fee), for persons engaged in 
transporting or offering for transportation certain categories and 
quantities of hazardous materials in intrastate, interstate, and 
foreign commerce. In addition, this final rule adopts two changes to 
the statutorily mandated registration and fee assessment program. 
Applicability of the registration requirement to materials that are 
extremely toxic by inhalation (Hazard Zone A) is expanded to include 
materials in a hazard class or division other than Division 2.3 or 
Division 6.1. RSPA is also adopting an exception from the registration 
requirement for foreign offerors, as authorized by the amended statute.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: David Donaldson, Office of Hazardous 
Materials Planning and Analysis, (202) 366-4484, or Joan McIntyre, 
Office of Hazardous Materials Standards, (202) 366-4488, RSPA, 
Department of Transportation, 400 Seventh Street SW., Washington, DC 
20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 9, 1992, RSPA published a final rule under Docket HM-208 
[57 FR 30620], establishing a national registration and fee assessment 
program, as required by 49 U.S.C. 5108 et seq. (Federal hazardous 
materials transportation law), for persons engaged in transporting or 
offering for transportation certain categories and quantities of 
hazardous materials in intrastate, interstate, and foreign commerce. 
Persons subject to the registration program are required to file 
annually a registration statement with RSPA and pay a total annual fee 
of $300, of which $250 is used to fund the Hazardous Materials Public 
Sector Training and Planning Grants Program, and $50 is used to offset 
processing costs. The registration fee of $250 is the minimum amount 
permitted under the statute. Grants to States and Indian tribes are 
expected to total more than $20 million through 1995, the third year 
that this program has been in effect. Average annual funding levels 
($6.3 million) however have been below the congressionally authorized 
level of $18.975 million per year.
    On January 30, 1995, RSPA issued a notice of proposed rulemaking 
(NPRM) (Docket HM-208B; 60 FR 5822) that proposed changes to increase 
the annual registration fee for certain persons. The NPRM distinguished 
between large, medium, and small entities that conduct operations in 
one or more of the five categories for which registration is required. 
RSPA proposed a four-level fee structure that considered the 
comparative risks that may be posed by the types and quantities of 
transportation activities covered by the registration requirement. The 
annual fee, under the graduated fee schedule proposed by RSPA, would be 
determined on the basis of the registrant's transportation activity 
during the prior calendar year: large ($5,050), medium ($2,550), small 
($500), and low ($300).

II. Graduated Fee Schedule

    More than 350 comments were received in response to the NPRM. 
Commenters opposing the increased fee schedule generally claimed that 
improved compliance efforts would eliminate the need to increase the 
fees to fully fund the grant program. Twelve commenters who supported 
the proposal to increased fees representing several States and local 
emergency response organizations that benefit directly from the grants 
program indicated a need for increased funding for grants. 
Approximately 100 inquiries were forwarded by Members of Congress on 
behalf of their constituents. Many commenters raised several complex 
issues and suggested various funding alternatives.
    As indicated in the notice of proposed rulemaking, an Industry 
Working Group (IWG), facilitated by the Hazardous Materials Advisory 
Council, and reflecting the perspective of many persons subject to the 
registration and fee collection requirements, provided recommendations 
on how the registration and fee collection requirement could be 
improved. Those recommendations contain the basic themes that are 
reflected in many of the 350 comments. In addition, the IWG offered 
numerous suggestions on how RSPA may be able to more effectively 
communicate registration requirements in non-technical language that 
the regulated community can more easily understand. RSPA has revised 
its brochure describing the registration program to reflect many of 
changes suggested by the IWG.
    RSPA received comments on behalf of the Alliance for Uniform Hazmat 
Transportation Procedures (Alliance), the National Conference of State 
Legislatures (NCSL), and the National Association of SARA Title III 
Officials. These commenters, reflecting the perspective of entities 
that benefit from the State and Indian tribe grant program funded by 
the fee, also generally opposed RSPA's proposed graduated fee 
structure. For example, NCSL believes that because RSPA has not 
generated, collected, or disbursed what NCSL considers as ``modestly 
authorized levels,'' the purpose of the Federal program has been 
eroded. NCSL strongly recommended that RSPA reevaluate the Federal 
registration program with an eye toward elimination. The Alliance 
opposed the fee schedule and believes that RSPA's actions will create 
obstacles in the registration of motor carriers by States and that 
implementation of the proposed fee schedule is premature.
    Based on the comments RSPA received in response to the NPRM, 
including the various alternatives and recommendations presented, RSPA 
has decided not to adopt the current proposal to increase the 
registration fees at this time. Regulations regarding registration 
(Subpart G to 49 CFR Part 107) are retained. Therefore, the annual 
registration fee remains at $300. This decision will maintain the 
current levels of funding to the States and Indian 
[[Page 27232]] tribes for the Hazardous Materials Public Sector 
Training and Planning Grants Program.
    RSPA plans to assess fully the registration and grants program 
before considering further action regarding an increase in the fee. 
RSPA will work with its Federal, State, and local partners, industry 
and labor, and environmental and public interest groups, to examine the 
costs and benefits of these programs. One aspect of this assessment may 
include an evaluation of combining several legislative mandates into a 
State-administered uniform program for permits and registration. RSPA's 
outreach efforts on this matter may include public meetings and 
workshops, as well as participation in meetings and seminars sponsored 
by others. RSPA will also continue to promote maximum compliance with 
the current registration program.

III. Foreign Offerors

    Foreign offerors are included in the definition of ``persons'' who 
are subject to the registration requirement to the extent that they 
engage in any of the activities covered by the registration program. 
However, because of the potential for reciprocal actions by other 
governments, and significant problems associated with informing and 
identifying the parties concerned, RSPA delayed application of the 
registration requirement to these entities until July 1, 1996. See 49 
CFR 107.606(f). Subsequently, section 104 of Public Law 103-311, 
enacted August 26, 1994, amended 49 U.S.C. 5108(a) by adding a new 
subparagraph that reads as follows:

    (4) The Secretary may waive the filing of a registration 
statement, or the payment of a fee, required under this subsection, 
or both, for any person not domiciled in the United States who 
solely offers hazardous materials for transportation to the United 
States from a place outside the United States if the country of 
which such person is a domiciliary does not require persons 
domiciled in the United States who solely offer hazardous materials 
for transportation to the foreign country from places in the United 
States to file registration statements, or to pay fees, for making 
such an offer.

    In this final rule, RSPA makes permanent the exception currently 
provided in Sec. 107.606(f). However, as proposed in the NPRM, the 
general exception in Sec. 107.606(a)(6) is limited to persons who offer 
hazardous materials for transportation to the United States from a 
foreign country that does not impose a registration statement or fee 
payment requirement on a person domiciled in the United States who 
offers hazardous materials for transportation to that country.
    In Sec. 107.606(b), RSPA explains that persons domiciled in 
countries that enforce a registration statement or fee payment 
requirement must file a registration statement and pay the annual fee 
upon a positive determination made by RSPA's Associate Administrator 
for Hazardous Materials Safety, the U.S. Competent Authority, that the 
other country's requirement is prejudicial to persons domiciled in the 
United States. The U.S. Competent Authority's determination will be 
communicated directly to the other country's Competent Authority, and 
will be published in the Federal Register. No later than 60 days 
following publication in the Federal Register of that Competent 
Authority determination, offerors domiciled in the other country are 
required to file a registration statement and pay the annual fee. If 
such an offeror does not register as required, it may not offer a 
hazardous material for transportation from that country to the United 
States.

IV. Expanded PIH Registration Requirements

    As proposed in Sec. 107.601(c), RSPA is broadening the scope of 
materials extremely toxic by inhalation covered by the registration 
requirement, to include every ``material poisonous by inhalation'' 
(PIH) as defined in 49 CFR 171.8 that meets the criteria for Hazard 
Zone A (extremely toxic). This change addresses several PIH materials 
that are listed in the Hazardous Materials Table in 49 CFR 172.101 as a 
Class 3, Class 8, Division 4.2 or Division 5.1 hazardous material. RSPA 
believes that this change will not add a substantial number of persons 
that are required to register.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and was reviewed by the Office of 
Management and Budget. This rule is considered a significant rule under 
the Regulatory Policies and Procedures of the Department of 
Transportation [44 FR 11034]. A regulatory evaluation is available for 
review in the Docket. Because the statute mandates the establishment 
and collection of fees, the discretionary aspects of this rulemaking 
are limited to setting the amount of the fee within the statutory range 
for each person subject to the registration program. The fees are not 
related to the cost of RSPA's hazardous materials safety programs. The 
fees to be paid by shippers and carriers of certain hazardous materials 
in transportation are related to the benefits received by these persons 
from the sale and transportation of hazardous materials and from 
emergency response services provided by public sector resources, should 
an accident or incident occur. The fees are also related to expenses 
incurred by State, Indian tribal, and local hazardous materials 
emergency preparedness and response activities.

B. Executive Order 12612

    This action has been analyzed in accordance with Executive Order 
12612 (``Federalism''). States and local governments are ``persons'' 
under 49 U.S.C. 5102, but are specifically exempted from the 
requirement to file a registration statement. The regulations herein 
have no substantial effects on the States, on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various levels of government. This 
registration regulation has no preemptive effect. It does not impair 
the ability of States, local governments or Indian tribes to impose 
their own fees or registration or permit requirements on intrastate, 
interstate or foreign offerors or carriers of hazardous materials. 
Thus, RSPA lacks discretion in this area, and preparation of a 
federalism assessment is not warranted.

C. Regulatory Flexibility Act

    This final rule maintains the minimum fee requirement mandated by 
statute for shippers and carriers of hazardous materials who are 
subject to the registration requirement. Therefore, I certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities.

D. Paperwork Reduction Act

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

E. 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 can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
[[Page 27233]] transportation, Packaging and containers, Penalties, 
Reporting and recordkeeping requirements.

    On the basis 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. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    2. In Sec. 107.601, paragraph (c) is revised to read as follows:


Sec. 107.601  Applicability.

* * * * *
    (c) More than one L (1.06 quarts) per package of a material 
extremely toxic by inhalation (i.e., ``material poisonous by 
inhalation,'' as defined in Sec. 171.8 of this chapter, that meets a 
criteria for ``hazard zone A,'' as specified in Secs. 173.116(a) or 
173.133(a) of this chapter);
* * * * *
    3. Section 107.606 is revised to read as follows:


Sec. 107.606  Exceptions.

    (a) The following are excepted from the requirements of this 
subpart:
    (1) An agency of the Federal government.
    (2) A State agency.
    (3) An agency of a political subdivision of a State.
    (4) An employee of any of those agencies in paragraphs (a)(1) 
through (a)(3) of this section with respect to the employee's official 
duties.
    (5) A hazmat employee (including, for purposes of this subpart, the 
owner-operator of a motor vehicle that transports in commerce hazardous 
materials, if that vehicle at the time of those activities, is leased 
to a registered motor carrier under a 30-day or longer lease as 
prescribed in 49 CFR part 1057 or an equivalent contractual agreement).
    (6) A person domiciled outside the United States, who offers solely 
from a location outside the United States, hazardous materials for 
transportation in commerce, provided that the country of which such a 
person is a domiciliary does not require persons domiciled in the 
United States, who solely offer hazardous materials for transportation 
to the foreign country from places in the United States, to file a 
registration statement or to pay a registration fee.
    (b) Upon making a determination that persons domiciled in the 
United States, who offer hazardous materials for transportation to a 
foreign country solely from places in the United States, must file 
registration statements or pay fees to that foreign country, the U.S. 
Competent Authority will provide notice of such determination directly 
to the Competent Authority of that foreign country and by publication 
in the Federal Register. Persons who offer hazardous materials for 
transportation to the United States from that foreign country must file 
a registration statement and pay the required fee no later than 60 days 
following publication of the determination in the Federal Register.

    Issued in Washington, DC on May 18, 1995, under the authority 
delegated in 49 CFR part 1.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
[FR Doc. 95-12658 Filed 5-19-95; 9:58 am]
BILLING CODE 4910-60-P