
[Federal Register: May 5, 2008 (Volume 73, Number 87)]
[Proposed Rules]               
[Page 24519-24522]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my08-10]                         

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

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 107

[Docket No. PHMSA-2008-0010 (HM-208G)]
RIN 2137-AE35

 
Hazardous Materials Transportation; Registration and Fee 
Assessment Program

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

ACTION: Notice of Proposed Rulemaking (NPRM).

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

SUMMARY: This rule proposes 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. For those registrants not qualifying as a small 
business or not-for-profit organization, we are proposing to increase 
the fee from $975 (plus a $25 administrative fee) to $2,475 (plus a $25 
administrative fee) for registration year 2009-2010 and following 
years. The proposed fee increase is necessary to fund the national 
Hazardous Materials Emergency Preparedness (HMEP) grants program at 
approximately $28,000,000 in accordance with the Administration's 
Fiscal Year 2008 budget.

DATES: Submit comments by July 14, 2008.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
PHMSA-2008-0010 by any of the following methods:
     Fax: 202-493-2251.
     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.
     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.
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: Include the agency name and docket number PHMSA-2008-
0010 (HM-208G) or Regulatory Identification Number (RIN) RIN 2137-AE35 
for this rulemaking at the beginning of your comment. Note that 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, or 
Ms. Deborah Boothe, Office of Hazardous Materials Standards, PHMSA, 
(202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    Since 1992, the Pipeline and Hazardous Materials Safety 
Administration (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 fund the Hazardous Materials and Emergency Preparedness 
(HMEP) grants program. The HMEP grants program supports hazardous 
materials emergency response planning and training activities by 
States, local governments, and Indian tribes. See 49 U.S.C. 5108(b), 
5116. PHMSA has discretion to require additional persons to register, 
beyond those offerors and transporters of the categories and quantities 
of hazardous materials listed in 49 U.S.C. 5108(a)(1), and to set the 
annual registration fee between the statutorily-mandated minimum and 
maximum amounts. See 49 U.S.C. 5108(a)(2), 5108(g)(2)(A).
    To meet Congressionally-authorized funding of $14.3 million for the 
HMEP grants program, in 2000, we expanded the base of registrants and 
adopted a two-tier fee schedule under which the registration fee was 
set at $275 for persons qualifying as small businesses under Small 
Business Administration (SBA) criteria, and $1,975 for other persons 
(plus a $25 processing fee in all cases). (69 FR 7297) Due to a 
surplus, in 2003, we temporarily adjusted the

[[Page 24520]]

registration fee to $125 (plus a $25 processing fee) for small 
businesses and not-for-profit organizations and $275 (plus a $25 
processing fee) for all other registrants. (68 FR 1342) In 2006, the 
fees increased to $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.
    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 makes available approximately $28,000,000 for the HMEP grants 
program and lowers the maximum registration fee from $5,000 to $3,000. 
Consistent with SAFETEA-LU, and the Consolidated Appropriations Act of 
2008 (Pub. L. 110-16) which sets an obligation limitation of 
$28,318,000 for expenses from the HMEP fund, the Administration's 
Fiscal Year 2008 budget requested and was granted $28,000,000 in 
support of HMEP activity.
    To ensure full funding of the HMEP grants program, PHMSA is 
proposing an increase in registration fees to fund the program at the 
$28.3 million level. This proposed fee increase will be in effect for 
the 2009-2010 registration year. We are proposing to delay the proposed 
fee increase until the 2009-2010 registration year to avoid 
accumulating a large surplus in the HMEP grants program account. For 
those registrants not qualifying as a small business or not-for-profit 
organization, we propose to increase the registration fee from $975 
(plus a $25 administrative fee) to $2,475 (plus a $25 administrative 
fee) for registration year 2009-2010 and following years.

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 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 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). 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 $125 
million. These grants helped to:
     Train 2,103,000 hazardous materials responders;
     Conduct 8,617 commodity flow studies;
     Write or update more than 50,983 emergency plans;
     Conduct 11,773 emergency response exercises; and
     Assist 22,288 local emergency planning committees (LEPCs).
    Since the beginning of the program, HMEP program funds have been 
used to support the following related activities in the total amounts 
indicated:
     $3.6 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.
     $2.8 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.
     $6.5 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.
     $2.8 million for the International Association of Fire 
Fighters (IAFF) to train instructors to conduct hazardous materials 
response training programs.

B. Increased 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 emergency response personnel are capable of effectively and 
safely responding to serious releases of hazardous materials. The 
availability of increased funding for the HMEP grants program will 
encourage State, tribal, and local agencies to provide more advanced 
training.
    The increased 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:
     $21,800,000 for training and planning grants, an increase 
of $9 million;
     A new $4,000,000 grant program for non-profit hazmat 
employee organizations to train hazmat instructors who will train 
hazmat employees;
     $1,000,000 for grants to support certain national 
organizations to train instructors to conduct hazardous

[[Page 24521]]

materials response training programs, an increase of $750,000;
     $625,000 for revising, publishing, and distributing the 
North American Emergency Response Guidebook, an increase of $125,000;
     $200,000 for continuing development of a national training 
curriculum; and
     $150,000 for monitoring and technical assistance.

III. Summary of Proposal To Increase HMEP Funding

    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. Under Federal hazmat law, we have the discretion to increase 
registration fees for both small and large businesses. We considered 
several alternatives for increasing the funds available for the HMEP 
grants program. One option was to increase the fee for all businesses 
offering for transportation or transporting the covered hazardous 
materials. Another option was to maintain the fee for small businesses 
and not-for-profit organizations while adjusting the fee for larger 
businesses.
    Due to a surplus, in 2003, we temporarily adjusted the registration 
fee to $125 (plus a $25 processing fee) for small businesses and not-
for-profit organizations and $275 (plus a $25 processing fee) for all 
other registrants. (68 FR 1342) This reduction has reduced the current 
surplus to approximately $14 million at the end of FY 2007.
    To achieve the statutorily mandated goal of funding the HMEP grants 
program activities at approximately $28,000,000 and avoid a surplus in 
the HMEP grants account, we are proposing to delay increasing the 
registration fees by leaving registration fees for persons other than 
small businesses at the current level of $975 (plus $25 processing fee) 
for registration year 2008-2009 and raising the fees to $2,475 (plus 
$25 processing fee) for registration year 2009-2010 and following.
    We believe 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. Since 2000, 
PHMSA has received approximately 42,000 registrations for each 
registration year. Small businesses or not-for-profit organizations 
make up 84%, or 35,275 of the registrants, while large businesses make 
up 16%, or 6,725, of the registrants.

IV. Multi-Year Registrations

    We allow a person to register for up to three years in one 
registration statement (49 CFR 107.612(c)). We have received 
approximately 560 advance registrations for the 2009-2010 registration 
year from other-than-small businesses that have paid the fee previously 
established for that year. We apply fees according to the fee structure 
ultimately established by regulation for the registration year rather 
than according to the fee set at the time of payment. Thus, if we adopt 
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 we lowered the fees for 
all registrants in 2003, we provided over 7,100 refunds amounting to 
over $2.3 million within the first year to registrants who had overpaid 
the newly established fees. If we adopt this proposal, we will notify 
each registrant who will be required to pay additional fees for the 
2009-2010 and following registration years.

V. 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., as amended by Pub. L. 109-59). 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.
    Congress reauthorized the Federal hazmat law in 2005 through the 
Hazardous Materials Transportation Safety and Security Reauthorization 
Act of 2005. This Act makes available funding for the HMEP grants 
program at approximately $28,000,000, an increase of nearly $14 
million. In addition, the Act lowers the maximum fee to $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 $14 
million per year. The increased 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 increased funding for the HMEP grants will enable us 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, we believe 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

[[Page 24522]]

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.

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 
$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 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 record keeping 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. 5101-5127, 44701; Sec 212-213, Pub. L. 104-
121, 110 Stat. 857; 49 CFR 1.45, 1.53.
    2. In Sec.  107.612, revise paragraph (d)(3) to read as follows:


Sec.  107.612  Amount of fee.

* * * * *
    (d) * * *
    (3) Other than a small business or not-for-profit organization. 
Each person that does not meet the criteria specified in paragraph 
(d)(1) or (d)(2) of this section must pay an annual registration fee 
of:
    (i) For registration year 2006-2007, 2007-2008, and 2008-2009, $975 
and the processing fee required by paragraph (d)(4) of this section;
    (ii) For registration year 2009-2010 and following, $2,475 and the 
processing fee required by paragraph (d)(4) of this section.
* * * * *

    Issued in Washington, DC, on April 29, 2008, under authority 
delegated in 49 CFR part 106.
Theodore L. Willke,
Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E8-9815 Filed 5-2-08; 8:45 am]

BILLING CODE 4910-60-P
