[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Proposed Rules]
[Pages 5258-5261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2174]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2009-0201 (HM-208H)]
RIN 2137-AE47


Hazardous Materials Transportation; Registration and Fee 
Assessment Program

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

ACTION: Notice of Proposed Rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: PHMSA is proposing to adjust the statutorily-mandated 
registration and fee assessment program for persons who transport, or 
offer for transportation, certain categories and quantities of 
hazardous materials. PHMSA's proposal would provide that, for 
registration years beginning in 2010-2011, the annual fee to be paid by 
those registrants not qualifying as a small business or not-for-profit 
organization would increase from $975 (plus a $25 administrative fee) 
to $2,975 (plus a $25 administrative fee). The proposed fee increase is 
necessary to fund the national Hazardous Materials Emergency 
Preparedness (HMEP) grants program at its authorized level of 
approximately $28,000,000.

DATES: Submit comments by March 4, 2010.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
PHMSA-2009-0201 by any of the following methods:
    <bullet> Fax: 202-493-2251.
    <bullet> Mail: Dockets Management System; U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
    <bullet> Hand Delivery: U.S. Department of Transportation, Dockets 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue, 
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: Include the agency name and docket number PHMSA-2009-
0201 (HM-208H) or Regulatory Identification Number (RIN) RIN 2137-AE47 
for this rulemaking at the beginning of your comment. All comments 
received will be posted without change to http://www.regulations.gov 
including any personal information provided. Persons wishing to receive 
confirmation of receipt of their comments must include a self-addressed 
stamped postcard.
    Docket: You may review the public docket through the Internet at 
http://www.regulations.gov or in person at the Dockets Operations 
office at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of 
Hazardous Materials Planning and Analysis, PHMSA, (202) 366-4484, and 
Ms. Deborah Boothe or Mr. Steven Andrews, Office of Hazardous Materials 
Standards, PHMSA, (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1992 PHMSA has conducted a national registration program 
under the mandate in 49 U.S.C. 5108 for persons who offer for 
transportation or transport certain hazardous materials in intrastate, 
interstate, or foreign commerce. The purposes of the registration 
program are to gather information about the transportation of hazardous 
materials, and to fund the Hazardous Materials and Emergency 
Preparedness (HMEP) grants program and additional related activities. 
See 49 U.S.C. 5108(b), 5116, 5128(b). PHMSA may set the annual 
registration fee between a minimum of $250 and maximum of $3,000. See 
49 U.S.C. 5108(a)(2), 5108(g)(2)(A).
    Since 2006, the annual registration fee has been set at $250 (plus 
a $25 processing fee) for small businesses and not-for-profit 
organizations and $975 (plus a $25 processing fee) for all other 
registrants. See 49 CFR 107.612(d). Because PHMSA had accumulated a 
surplus following a prior adjustment in 2000 (see 65 FR 7297, 7309 
[Feb. 14, 2000]), notwithstanding a temporary reduction between 2003 
and 2006, since Fiscal Year 2008, we have been able to fully fund the 
obligation limit of $28,318, 000 in the Consolidated Appropriations Act 
of 2008 (Pub. L. 110-116 [121 Stat. 1295], November 13, 2007), and the 
Omnibus Appropriations Act, 2009 (Pub. L. 111-8 [123 Stat. 945], March 
11, 2009). However, that surplus has now been reduced to $1,500,000, 
and it is necessary to adjust registration fees in order to collect 
additional monies in the 2010-2011 and following registration years and 
fully fund the current authorization and expected budget requests of 
$28.3 million for Fiscal Years beginning in 2010. This can be done by 
leaving the annual registration fee at $250 (plus a $25 processing fee) 
for those persons who are a small business or not-for-profit 
organization and increasing to $2,975 (plus a $25 processing fee) the 
annual fee paid by all other persons required to register.

II. HMEP Grants Program

A. Purpose and Achievements of the HMEP Grants Program

    The 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: (1) Develop, improve, and implement emergency 
plans; (2) train public sector hazardous materials emergency response 
employees to respond to accidents and incidents involving hazardous 
materials; (3) determine flow patterns of hazardous materials within a 
state and between states; and (4) determine the need within a state for 
regional hazardous materials emergency response teams.
    The HMEP grants program encourages the growth of the hazardous 
materials planning and training programs of state, local, and tribal 
governments by limiting the Federal funding to 80 percent of the cost a 
state or Indian tribe incurs to carry out the activity for which the 
grant is made. See 49 U.S.C. 5116(e).

[[Page 5259]]

HMEP grants supplement the amount already being provided by the state 
or Indian tribe. By accepting an HMEP grant, the state or tribe makes a 
commitment to maintain its previous level of support. See 49 U.S.C. 
5116(a)(2)(A) and 5116(b)(2)(A).
    Since 1993, PHMSA has awarded all states and territories and 45 
Native American tribes planning and training grants totaling $203 
million. These grants helped to:
    <bullet> Train 2,420,000 hazardous materials responders;
    <bullet> Conduct 9,282 commodity flow studies;
    <bullet> Write or update more than 55,826 emergency plans;
    <bullet> Conduct 13,372 emergency response exercises; and
    <bullet> Assist 25,059 local emergency planning committees (LEPCs) 
or approximately 1,670 per year.
    Since the beginning of the program, HMEP program funds have also 
supported the following related activities in the total amounts 
indicated:
    <bullet> $3.4 million for the development and periodic updating of 
a national curriculum used to train public sector emergency response 
and preparedness teams. The curriculum guidelines, developed by a 
committee of Federal, state, and local experts, include criteria for 
establishing training programs for emergency responders at five 
progressively more skilled levels: (1) First responder awareness, (2) 
first responder operations, (3) hazardous materials technician, (4) 
hazardous materials specialist, and (5) on-scene commander.
    <bullet> $2.6 million to monitor public sector emergency response 
planning and training for hazardous materials incidents, and to provide 
technical assistance to state or Indian tribe emergency response 
training and planning for hazardous materials incidents.
    <bullet> $7.6 million for periodic updating and distribution of the 
North American Emergency Response Guidebook. This guidebook provides 
immediate information on initial response to hazardous materials 
incidents, and is distributed free of charge to the response community.
    <bullet> $3.5 million for the International Association of Fire 
Fighters (IAFF) to train instructors to conduct hazardous materials 
response training programs.

B. Funding of the HMEP Grants Program

    An estimated 800,000 shipments of hazardous materials make their 
way through the national transportation system each day. It is 
impossible to predict when and where a hazardous materials incident may 
occur or what the nature of the incident may be. This potential threat 
requires state and local agencies to develop emergency plans and train 
emergency responders on the broadest possible scale.
    The HMEP training grants are essential for providing adequate 
training of persons throughout the nation who are responsible for 
responding to emergencies involving the release of hazardous materials. 
There are over 2 million emergency responders requiring initial 
training or periodic recertification training, including 250,000 paid 
firefighters, 850,000 volunteer firefighters, 725,000 law enforcement 
officers, and 500,000 emergency medical services (EMS) providers. Due 
to the high turnover rates of emergency response personnel, there is a 
continuing need to train a considerable number of recently recruited 
responders at the most basic level.
    In addition, training at more advanced levels is essential to 
ensure that emergency response personnel are capable of effectively and 
safely responding to serious releases of hazardous materials. The 
availability of funding for the HMEP grants program will encourage 
state, tribal, and local agencies to provide more advanced training.
    The funding for HMEP grants will enable PHMSA to help meet 
previously unmet needs of state, local and tribal governments, and 
public and private trainers by providing for the following activities 
authorized by law:
    <bullet> $21,800,000 for training and planning grants;
    <bullet> A new $4,000,000 grant program for non-profit hazmat 
employee organizations to train hazmat instructors who will train 
hazmat employees;
    <bullet> $1,000,000 for grants to support certain national 
organizations to train instructors to conduct hazardous materials 
response training programs, an increase of $750,000;
    <bullet> $625,000 for revising, publishing, and distributing the 
North American Emergency Response Guidebook;
    <bullet> $188,000 for continuing development of a national training 
curriculum; and
    <bullet> $150,000 for monitoring and technical assistance;
    <bullet> $555,000 for administrative support.

III. Summary of Proposal To Fund HMEP

    A registration fee system should: (1) Be simple, straightforward, 
and easily implemented and enforced; (2) 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 (3) ensure adequate funding for the HMEP grants 
program. PHMSA considered the following alternatives for maintaining 
the funds available for the HMEP grants program: (1) To increase the 
fee for all businesses offering for transportation or transporting the 
covered hazardous materials, and (2) to maintain the current fee for 
small businesses and not-for-profit organizations while adjusting the 
fee for larger businesses.
    PHMSA believes adjusting the fee solely for larger, for-profit 
businesses is the best approach to meet the objectives listed above. 
Although there are exceptions, small businesses and not-for-profit 
organizations generally offer for transportation or transport fewer and 
smaller hazardous materials shipments as compared to larger companies. 
Raising the registration fee only for other-than-small businesses 
rather than for all businesses correlates the fee structure to the 
level of risk associated with shipments offered for transportation and 
transported by larger companies.
    Moreover, increasing the registration fees only for other-than-
small businesses will affect significantly fewer entities and will 
affect entities that can more easily absorb the increase. Presently, 
PHMSA has received approximately 41,000 registrations for each 
registration year. Small businesses and not-for-profit organizations 
make up 83%, or 34,025 of the registrants, while large businesses make 
up 17%, or 6,975, of the registrants.
    Accordingly, PHMSA is proposing to increase the registration fees 
for persons other than small businesses from $975 (plus $25 processing 
fee) to $2,975 (plus $25 processing fee) for registration year 2010-
2011 and following, in order to maintain the statutorily mandated goal 
of funding the HMEP grants program activities at approximately 
$28,000,000.

IV. Multi-Year Registrations

    We allow a person to register for up to three years in one 
registration statement (49 CFR 107.612(c)). PHMSA has received 
approximately 2,100 advance registrations for the 2010-2011 
registration year from other-than-small businesses that have paid the 
fee previously established for those years. Approximately 1,250 also 
included advance registrations for the 2011-2012 registration year. 
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.

[[Page 5260]]

Thus, if PHMSA adopts the increase in registration fees proposed in 
this NPRM, additional fees would be required for registrations paid in 
advance at the lower levels in effect at the time of payment. When 
PHMSA lowered the fees for all registrants in 2003, PHMSA provided more 
than 7,100 refunds amounting to over $2.3 million within the first year 
to registrants who had overpaid the newly established fees. If PHMSA 
adopts this proposal, PHMSA will notify each registrant who will be 
required to pay additional fees for the 2010-2011 and following 
registration years.

V. Prior Year Registration Information

    PHMSA proposes to revise Sec.  107.612 to remove information on 
previous years' registration fees. This information is no longer 
needed. Information on fees in effect for registration years 1999-2000 
to 2009-2010 is available in the registration brochure, previous 
editions of the CFR, and on the registration Web site (http://www.phmsa.dot.gov/hazmat/registration). Note that persons subject to 
registration requirements must pay the annual registration fee, 
including the processing fee, in effect for the specific registration 
year for which the person is submitting registration information.

VI. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This proposed rule is published 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 HMEP grants. The HMEP grants 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.
    The Federal hazmat law makes available funding for the HMEP grants 
program at approximately $28,000,000, and directs PHMSA to establish an 
annual registration fee between a minimum of $250 and a maximum of 
$3,000.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed 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 proposed rule is considered non-significant under the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034).
    The cost to industry of increasing registration fees will be an 
additional $14 million per year. The funding for the HMEP grants 
program will provide essential training of persons throughout the 
nation who are responsible for responding to emergencies involving the 
release of hazardous materials. In addition, training at more advanced 
levels is essential to assure emergency response personnel are capable 
of effectively and safely responding to serious releases of hazardous 
materials. The funding for the HMEP grants will enable PHMSA to help 
meet previously unmet needs of state, local and tribal governments, and 
public and private trainers by providing funding for activities such 
as: (1) Planning and training grants for local emergency planning 
committees; (2) a new program for non profit hazmat employee 
organizations to train hazmat instructors that will train hazmat 
employees; (3) support to certain national organizations to train 
instructors to conduct hazardous materials response training programs; 
(4) revising, publishing, and distributing the North American Emergency 
Response Guidebook; (5) continuing development of a national training 
curriculum; and (6) monitoring and technical assistance.
    While the safety benefits resulting from improved emergency 
response programs are difficult to quantify, PHMSA believes these 
benefits significantly outweigh the annual cost of funding the grants 
program. The importance of planning and training cannot be 
overemphasized. To a great extent, we are a nation of small towns and 
rural communities served by largely volunteer fire departments. In many 
instances, communities' response resources already are overextended in 
their efforts to meet routine emergency response needs. The planning 
and training programs funded by the HMEP grants program enable state 
and local emergency responders to respond quickly and appropriately to 
hazardous materials transportation accidents, thereby mitigating 
potential loss of life and property and environmental damage. The 
regulatory evaluation to the final rule issued under Docket HM-208 (57 
FR 30620) showed that the benefits to the public and to the industry 
from the emergency response grant program would at least equal, and 
likely exceed, the annual cost of funding the grant program. Based on 
estimates of annual damages and losses resulting from hazardous 
materials transportation accidents, the analysis concluded that the 
HMEP program would be cost-beneficial if it were only 3% effective in 
reducing either the frequency or severity of the consequences of 
hazardous materials transportation accidents. Achieving this level of 
effectiveness is well within the success rates of training and planning 
programs to reduce errors and increase the proficiency and productivity 
of response personnel. A regulatory evaluation for this proposed rule 
is available for review in the public docket.

C. Executive Order 13132

    This proposed 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 
proposed rule does not propose 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 proposed 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 proposed 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. The provisions of this rule apply specifically to businesses 
not falling within the small entities category. Therefore, PHMSA 
certifies this rule would not have a significant economic impact on a 
substantial number of small entities.

[[Page 5261]]

F. Unfunded Mandates Reform Act of 1995

    This proposed 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 proposed 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 Assessment

    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 human 
environment. There are no significant environmental impacts associated 
with this proposed rule. PHMSA is proposing in this rule changes to the 
requirements in the Hazardous Materials Regulations on the registration 
and fee assessment program for persons who transport or offer for 
transportation certain categories and quantities of hazardous 
materials. The proposed increase in registration fees will provide 
additional funding for the HMEP program to help mitigate the safety and 
environmental consequences of hazardous materials transportation 
accidents.

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://www.regulations.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, we propose to amend 49 CFR Part 
107 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 31001; 49 CFR 1.45, 1.53.

    2. Revise Sec.  107.612 to read as follows:


Sec.  107.612  Amount of fee.

    (a) For the registration year 2010-2011 and subsequent years, each 
person offering for transportation or transporting in commerce a 
material listed in Sec.  107.601(a) must pay an annual registration 
fee, as follows:
    (1) Small business. Each 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, must pay an annual 
registration fee of $250 and the processing fee required by paragraph 
(a)(4) of this section.
    (2) Not-for-profit organization. Each not-for-profit organization 
must pay an annual registration fee of $250 and the processing fee 
required by paragraph (a)(4) of this section. A not-for-profit 
organization is 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 must pay an annual registration fee of 
$2,975 and the processing fee required by paragraph (a)(4) of this 
section.
    (4) Processing fee. 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).
    (b) For registration years 2009-2010 and prior years, each person 
offering for transportation or transporting in commerce a material 
listed in Sec.  107.601(a) must pay the annual registration fee, 
including the processing fee, in effect for the specific registration 
year.

    Issued in Washington, DC, on January 28, 2010, under authority 
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Acting Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2010-2174 Filed 2-1-10; 8:45 am]
BILLING CODE 4910-60-P