[Federal Register Volume 73, Number 87 (Monday, May 5, 2008)]
[Proposed Rules]
[Pages 24519-24522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9815]
=======================================================================
-----------------------------------------------------------------------
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