[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Proposed Rules]
[Pages 5822-5828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2281]
[[Page 5821]]
_______________________________________________________________________
Part VIII
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 107
Hazardous Materials Transportation Registration and Fee Assessment
Program; Proposed Rule
Federal Register / Vol. 60, No. 19 / Monday, January 30, 1995 /
Proposed Rules
[[Page 5822]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 107
[Docket No. HM-208B, Notice No. 95-3]
RIN 2137-AC58
Hazardous Materials Transportation Registration and Fee
Assessment Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: RSPA is proposing changes to the current registration and fee
assessment program for persons engaged in transporting or offering for
transportation certain categories and quantities of hazardous materials
in intrastate, interstate, and foreign commerce under the Hazardous
Materials Regulations. The proposed changes would increase the annual
registration fee for a number of persons by distinguishing between
large, medium, and small entities that conduct operations in one or
more of the several categories for which registration is required. The
intended effect of the proposed changes is to provide a sound basis for
funding the national emergency response training and planning grant
program.
DATES: Written comments: Comments must be received on or before April
3, 1995.
Public hearing: A public hearing will be held beginning at 9:00
a.m., February 16, 1995. Persons desiring to make oral statements at
the hearing should notify the Research and Special Programs
Administration (RSPA) Docket Clerk by telephone (202) 366-5046 or in
writing by February 13, 1995.
ADDRESSES: Written comments: Address comments to Dockets Unit (DHM-30),
Hazardous Materials Safety, Research and Special Programs
Administration, U.S. Department of Transportation, Washington, DC
20590-0001. Comments should identify the docket (HM-208B) and be
submitted in five copies. Persons wishing to receive confirmation of
receipt of their comments should include a self-addressed, stamped
postcard showing the docket number. The Dockets Unit is located in Room
8421 of the Nassif Building, 400 Seventh Street SW., Washington, DC
20590-0001. Public dockets may be viewed between the hours of 8:30 a.m.
and 5:00 p.m., Monday through Friday, except Federal holidays.
Public hearing: The public hearing will be held in the Auditorium
of the Federal Aviation Administration Building located at 800
Independence Avenue, SW., Washington, DC 20491. Mail written requests
to speak at the hearing to: Docket Clerk, Room 8421, Office of
Hazardous Materials Safety, Research and Special Programs
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. For
further information on public hearing procedures, see Supplementary
Information.
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) 366-8553, RSPA,
Department of Transportation, 400 Seventh Street SW., Washington, DC
20590-0001.
SUPPLEMENTARY INFORMATION:
I. Public Hearing Information
Each request to speak at the public hearing must identify the
speaker; organization represented, if any; daytime telephone number;
and the anticipated length of the presentation, not to exceed 10
minutes. Written text of the oral statement should be presented to the
hearing officer and reporter prior to the oral presentation. Hearings
may conclude before 5:00 p.m. if all persons wishing to give oral
comments have been heard. To confirm plans to attend, contact Ms. Joan
McIntyre at (202) 366-8553 by February 15, 1995.
II. 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, for persons engaged in
transporting or offering for transportation certain categories and
quantities of hazardous materials in intrastate, interstate, and
foreign commerce. Persons currently subject to the registration program
are required to annually file a registration statement with RSPA and
pay a total annual fee of $300.00, of which $250.00 is to fund a
nationwide emergency response training and planning grant program for
States, local governments, and Indian tribes and $50.00 is to offset
Department of Transportation (DOT) processing costs. The registration
fee of $250.00 is the minimum amount permitted under the statute to be
collected for funding the Interagency Hazardous Materials Public Sector
Training and Planning Grants Program. RSPA estimates that approximately
25,000 persons will register for the current (1994-1995) registration
year, thereby generating $6.25 million. This amount is not sufficient
to carry out the national emergency response training and planning
grant program at the level contemplated by Congress.
III. Scope of the Current Registration Program
A. General
The current registration program is focused on persons who are
under a statutory obligation to register with RSPA. Under 49 U.S.C.
5108, each person who carries out one or more of the following
activities must file a registration statement with RSPA and pay an
annual registration fee:
(1) Transports or causes to be transported or shipped in commerce
highway-route controlled quantities of Class 7 (radioactive) materials;
(2) Transports or causes to be transported or shipped in commerce
more than 25 kilograms (55 pounds) of Division 1.1, 1.2, or 1.3 (Class
A or Class B explosive) material in a motor vehicle, rail car, or
freight container;
(3) Transports or causes to be transported or shipped in commerce
more than one liter (1.06 quarts) per package of a hazardous material
which has been designated by RSPA as extremely toxic by inhalation;
(4) Transports or causes to be transported or shipped in commerce a
hazardous material in a bulk packaging, container, or tank if the
packaging, container, or tank has a capacity equal to or greater than
13,248 liters (3,500 gallons) or more than 13.24 cubic meters (468
cubic feet); or
(5) Transports or causes to be transported or shipped in commerce a
shipment in other than a bulk packaging of 2,268 kilograms (5,000
pounds) or more of a class of hazardous materials for which placarding
of a vehicle, rail car, or freight container is required.
In addition, RSPA holds authority under Sec. 5108 to require
registration by each person who offers for transportation or transports
any form or quantity of a hazardous material in commerce, and each
person that manufactures, fabricates, marks, maintains, reconditions,
repairs, or tests packagings that are represented, marked, certified,
or sold for use in the transportation in commerce of hazardous
materials. At this time, RSPA is not proposing to expand the
registration requirement to such persons. [[Page 5823]]
B. 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 notice, RSPA proposes to make permanent the exception
currently provided in Sec. 107.606(f). However, in proposed
Sec. 107.606(a)(6), the general exception would be 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 shall 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 would be
communicated directly to the other country's Competent Authority, and
it would 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 would
be required to file a registration statement and pay the annual fee. If
such an offeror were not registered, it could not offer a hazardous
material for transportation from that country to the United States.
IV. Fee Schedule Under the Current Program
Under 49 U.S.C. 5108 the amount of the registration fee which may
be collected from a person required to register with RSPA may not be
less than $250.00 nor more than $5,000.00. The current registration fee
is $250.00 for all persons required to be registered with RSPA, plus a
processing fee of $50.00. All registrants, regardless of the size of
their company, their level of income, or the extent to which they
engage in hazardous materials transportation activities, currently pay
the same registration fee.
V. Funding Shortfalls and Compliance Enforcement
A. Training and Planning Program Funding Shortfall
For the public sector training and planning program, 49 U.S.C. 5116
and 5127 provide an annual authorization in the amount of $18.975
million from 1993 through 1998. The authorization allocates $5 million
for planning grants; $7.8 million for training grants; $1 million for
development of a national curriculum; $3.2 million for monitoring and
technical assistance by DOT and other Federal departments and agencies;
$250,000 for a hazmat employee training grant program; and up to 10% of
the amount made available from the registration fee account (or a
maximum of $1.725 million) for the administrative costs of the program.
The planning and training grants awarded to States and Indian
tribes, as well as expenditures for development of the training
curriculum and other elements of the program, are drawn from an account
established by the Secretary of the Treasury for the deposit of
registration fees. In the registration years ending in June 1993 and
1994, registration fees collected and deposited into that account under
the registration program amounted to $6.8 million and $6.7 million,
respectively. An estimated $6.25 million in registration fees will be
deposited during the current registration year ending in June 1995.
Currently, annual registration fees do not provide all of the $12.8
million authorized for training and planning grants to States and
Indian tribes or the amounts authorized for other purposes. This
funding shortfall compelled the Department to reduce grant allocations
to the States and Indian tribes by approximately 40%. Increased
registration fees will permit RSPA to substantially improve support of
hazardous materials emergency response planning and training to the
extent contemplated by Congress.
B. Outreach Efforts, Compliance, and Enforcement
RSPA has conducted an extensive outreach effort to increase
awareness of the registration requirement. Over 400,000 informational
brochures have been distributed through direct mailing campaigns and
during presentations to industry. Those mailing campaigns targeted,
among others, more than 46,000 carriers and shippers identified by the
Federal Highway Administration's (FHWA) Office of Motor Carriers; more
than 22,000 generators and 13,000 transporters of hazardous waste, as
identified by the Environmental Protection Agency; nearly 6,000
shippers identified in RSPA's Hazardous Materials Incident Reporting
System; approximately 4,000 holders of hazardous materials exemptions
issued by RSPA; thousands of shippers and carriers that constitute the
membership of several trade associations having an interest in the
transportation of hazardous materials; and numerous State agencies.
During this outreach, RSPA has cross-checked its registrations data
base with each of the other lists provided by State agencies, and
others, to identify potential cases of non-compliance. The registration
program has been publicized in trade magazines and industry
newsletters. Three supplemental notices have been published in the
Federal Register advising the public of registration requirements. 58
FR 10985, February 23, 1993; 58 FR 26040, April 29, 1993; and 59 FR
22132, April 29, 1994. Compliance enforcement with the registration
requirements was a key element of ROADCHECK-93, a nationwide inspection
effort sponsored by the FHWA. Of 2,300 placarded trucks that were
checked for proof of registration during that inspection, 88% were
registered and had proof on board. Of the 12% that did not have proof
on board, 80% were already registered. The Federal Railroad
Administration (FRA) has publicized the registration program through
technical bulletins and informational brochures distributed to their
regional offices and all FRA inspectors. Approximately 60 Federal
enforcement actions have been initiated throughout the United States,
and eighteen State enforcement agencies have issued more than 250
citations for failure to register. Finally, during May, 1994, RSPA's
Associate Administrator for Hazardous Materials Safety wrote to each
State grant recipient to request [[Page 5824]] their assistance in
identifying persons who have not registered, but who are required to do
so.
As an alternative to increasing registration fees, RSPA recently
proposed that offerors and transporters verify the registration status
of each other before transportation begins. See Notice of Proposed
Rulemaking in Docket HM-208A, 59 FR 15602, April 1, 1994. Most
commenters opposed this proposal. Commenters overwhelmingly believed
that Federal and State agencies should be responsible for enforcing the
regulations, not industry. Logistical problems, administrative burdens,
and increased costs were cited by commenters opposing this proposal.
RSPA did not adopt the proposal in the final rule. 59 FR 32930, June
27, 1994.
Based on our outreach, our compliance efforts, and the results of
ROADCHECK-93, RSPA believes the compliance rate to be approximately
90%. A significant increase in the campaign to inform shippers and
carriers through education and stronger compliance is not expected to
result in a sufficient number of new registrants to make-up the current
funding shortfall. At the same time, 100% compliance remains the goal,
and RSPA invites the submission of information which may be used to
identify and contact unregistered offerors and transporters of
hazardous materials. Suspected violations of the registration
requirements may be brought to the attention of Federal or State
enforcement agencies and specifically may be brought to RSPA's
attention by calling RSPA's Registration Program Office at (202) 366-
4484.
VI. Factors Taken Into Consideration in Developing the Proposals of
This NPRM
Within the range of $250.00 to $5,000.00, 49 U.S.C. 5108 allows
RSPA to base the amount of the registration fee on one or more of the
following factors:
(1) The gross revenues from the transportation of hazardous
materials;
(2) The types of hazardous materials transported or caused to be
transported;
(3) The quantities of hazardous materials transported or caused to
be transported;
(4) The number of shipments of hazardous materials;
(5) The number of activities which a person carries out for which a
filing of a registration statement is required;
(6) The threat to property, persons, and the environment from an
accident or incident involving the hazardous materials transported or
caused to be transported;
(7) The percentage of gross revenues which are derived from the
transport of hazardous materials;
(8) The amount of funds which are made available to carry out the
emergency response planning and training grant program; and
(9) Such other factors as RSPA considers appropriate.
Given the relatively narrow permissible range of the registration
fee (between $250.00 and $5,000.00), RSPA believes that the fee levels
should be as simple and as straightforward as possible so as to be
easily understood, administered, and enforceable. RSPA also believes
that the fee levels should consider the comparative risks that may be
posed by the types of activities covered by the registration
requirement, to which emergency response planning and training are
addressed. This includes the difference in the level of activity
between small and large companies as well as any differences between
the ``types of hazardous materials transported or caused to be
transported''--e.g., a highway route controlled quantity of radioactive
materials, or a shipment of 5,000 pounds or more of one hazardous
material for which placarding is required.
In trying to strike a balance between equity and efficiency
considerations, and in trying to make the registration process as clear
and as administratively simple as possible, RSPA has tried to link the
registration fee to information which is readily available to potential
registrants, which can be verified by inspection and enforcement
personnel, and which bears some relationship to the risk or magnitude
of a person's involvement in hazardous materials transportation
activities. Although the registration statement and fee level
categories are excepted from the Paperwork Reduction Act by 49 U.S.C.
5108, RSPA has sought to avoid any approach which would entail a large
recordkeeping and accounting burden on industry and the government. For
example, basing the annual registration fee on a person's annual gross
revenue, or on the percentage of gross revenue derived from the
transportation of hazardous materials, could require significant
changes in the way paperwork tracking and accounting procedures are
handled by a company. Further, this information would be subject to
verification in order to ensure that a person's annual fee was in fact
commensurate with annual gross revenue, or with the percentage of gross
revenue, derived from the company's transportation of hazardous
materials.
One commenter on the proposal under HM-208A, the National
Industrial Transportation League (NITL), stated that, if the universe
of prospective registrants is smaller than originally estimated, an
equitable increase in fees to cover a deficiency in funds would be less
costly and burdensome than requiring offerors and transporters to
verify each other's registration status. NITL believed that this
deficiency could be eliminated by increasing the flat fee or by
implementing a graduated fee schedule with registrants who are
significantly more involved in the transport of hazardous material
bearing a proportionately larger share of the increase.
At its annual meeting on July 23-28, 1994, the National Conference
of State Legislatures (NCSL) again expressed its support of the action
taken by Congress in the 1990 amendments to the Hazardous Materials
Transportation Act (now replaced by 49 U.S.C. 5101 et seq.) to clarify
government's regulatory roles and responsibilities; establish uniform
standards for regulation; improve the existing preemption determination
procedure; provide increased financial support for inspection,
enforcement, training and response activities; guarantee State fiscal
autonomy; and increase overall program coordination and data
collection. NCSL also expressed its concern that the current funding
mechanism for Federal grants to State training and emergency response
activities is deficient. These concerns include unreliable
appropriations; insufficient receipt of registration fees; high
administrative costs; and lack of collection enforcement.
VII. Proposed Fees To Be Assessed for Funding the National Emergency
Response Training and Planning Grant Program
In order to adequately fund the training and planning grant
program, RSPA seeks, through this rulemaking action, to collect an
amount equal to the annual funding authorization of $18.975 million.
RSPA believes that this is best accomplished by proposing fee levels
that range from the statutorily mandated minimum ($250.00) to the
mandated maximum ($5,000.00), depending on the type, quantity, and the
manner in which hazardous materials are offered for transportation or
transported.
RSPA is proposing to establish a graduated fee schedule based on
the type of hazard posed and the quantity of material offered for
transportation or transported during the prior calendar year. Any
person registering for a registration year subsequent to a year in
[[Page 5825]] which it did not offer or transport hazardous material of
the type, and quantity, for which registration is required would pay
the minimum registration fee of $250.00, plus the $50.00 processing
fee, for a total fee of $300.00.
RSPA believes that this regulatory approach provides fee levels
which broadly address many of the factors contained in 49 U.S.C. 5108.
Thus, it addresses the types and quantities of hazardous materials
transported or caused to be transported; the threat to property,
persons, and the environment from an accident or incident involving the
hazardous materials transported or caused to be transported; gross
revenues from the transportation of hazardous materials--to the extent
that these revenues are a function of hazardous materials
transportation-related activity; and the need to adequately fund the
mandated training and planning grant program.
In addition, the proposal provides a reasonably fair and equitable
solution to the great disparity between many small companies who are
engaged in the shipment and transportation of hazardous materials, and
large companies which annually manufacture, offer and transport
thousands of tons of hazardous materials. RSPA is also confident that
the revised fee structure would provide a sound basis for the funding
and continued integrity of the emergency response training and planning
grant program at a level authorized by law.
VIII. Discussion of Proposed Fee Levels
A. General
Under this proposal, all persons currently required to file a
registration statement with RSPA would continue to be assessed, at a
minimum, a registration fee of $250.00, plus a processing fee of
$50.00, for a total of $300.00. In addition, offerors and transporters
who handle quantities of hazardous materials that pose a greater hazard
potential would pay higher registration fees, up to $5,000.00, plus the
$50.00 processing fee, for a total of $5,050.00.
The proposed fee schedule is a tiered system that follows the
mandatory registration filing criteria specified in 49 U.S.C. 5108 and
reflects the hazard potential posed by various transportation
activities. The complete fee schedule appears in the table in
Sec. 107.612 later in this document. For Class 7 (radioactive
materials), a total annual fee of $5,050.00, the maximum permitted by
Sec. 5108, is assessed for transportation of any highway route
controlled quantity. For explosives and for poison inhalation hazard
(PIH), Zone A, materials there is a three-tiered sub-system of fees.
The tiered fees, including the $50.00 processing fee, are $5,050.00 for
larger quantities, $2,550.00 for intermediate quantities, and $300.00
for smaller quantities.
The schedule of registration fees for hazardous materials in bulk
packagings is keyed to the number of different bulk packagings used
during the year. As used in the Table in Sec. 107.612, ``different''
bulk packagings refers to bulk packagings that are separately
identifiable through permanent markings, serial numbers, or the like.
Fees would be incrementally assessed based upon the number of different
bulk packagings, including tank cars, cargo tank motor vehicles,
portable tanks (e.g., IM-101/102), hopper vehicles, and hopper cars.
Total annual fee levels would be based, in three increments ($5,050.00,
$2,550.00, and $500.00), upon the number of different bulk packagings
offered for transportation or transported during the prior calendar
year.
Finally, an annual registration fee of $250.00, the minimum allowed
by Sec. 5108, plus the $50.00 annual processing fee, for a total of
$300.00, is assessed for the transportation of 5,000 pounds or more of
aggregated non-bulk packages of hazardous materials for which
placarding is required, and for persons not engaged in any of the
higher fee activities in the prior calendar year.
Persons who perform both offeror and carrier functions would be
assessed fees based on the full scope of their transportation
activities. However, no person would be required to pay more than the
highest single annual fee associated with that person's operations, as
specified in the Registration Fee Table in Sec. 107.612(a).
The following are hypothetical examples of total annual fees
payable by persons who, based upon their prior calendar year hazardous
material transportation activity, are required to file a registration
statement:
(1) A shipper that offered eight or more different tank cars would
be assessed a total annual fee of $5,050.00.
(2) A carrier that transported only eleven different cargo tank
motor vehicles would be assessed a total annual fee of $500.00.
(3) A shipper that offered fifteen different cargo tank motor
vehicles and 75 different Class 106 multi-unit tank car tanks (nominal
water capacity of 2,000 pounds) loaded with a PIH, Zone A, material
would be assessed a total annual fee of $2,550.00.
RSPA believes this simplified distinction between large, medium,
and small entities achieves the same level of equity as may be achieved
by more complex calculations, such as the determination of revenue ton-
miles or total number of shipments. The bulk transportation fee
categories also would be mutually exclusive (e.g., a person that offers
seven tank cars and 23 cargo tank motor vehicles would be assessed fees
as a medium-size entity, since neither category by itself results in a
classification as a large entity).
The requirement to register, and the amount of the fee, are based
upon transportation that occurs to, from, or between points within the
United States. Thus, even though a foreign motor carrier's fleet may
comprise a large number of cargo tank motor vehicles, the carrier's
registration fee level in this category is based upon the number of
different cargo tank motor vehicles actually used during the prior year
for hazardous materials transportation to, from, or between points
within the United States.
Although the proposed fee schedule loses some of the simplicity of
the current system, RSPA is proposing these changes in the interest of
striking a balance between equity considerations, minimizing the impact
on smaller businesses, and insuring the adequacy of funding for the
emergency response training and planning grant program. In addition, it
is important to recognize that the emergency response planning and
training program focuses upon those situations involving materials
presenting the greatest hazard potential. Accordingly, RSPA believes
scaled registration fees should be applied in such a way that the
highest fees are paid by persons who offer or transport those
materials.
RSPA welcomes comments on the proposed graduated registration fee
levels and the thresholds which trigger the increase in fees, as well
as on any other factors that might be considered as the basis for the
assessment of registration fees. For example, should there be more (or
fewer) subdivisions in any of the five (5) categories of activities for
which registration is required, and what should be the registration fee
for each subdivision? Alternatively, should there be a progressive
increase in the registration fee associated with an increase in
activity (e.g., $250.00 for each tank car shipment--not to exceed
$5,000.00 per year)?
B. Possible Expansion of the Registration Fee Base
The regulatory evaluation prepared in support of this rulemaking
action [[Page 5826]] considered an alternative that would expand the
scope of coverage of the registration program. Specifically, within
this alternative, RSPA evaluated the following options:
(1) Include all shipments (bulk and non-bulk) for which placarding
is required.
(2) Include all shipments (bulk and non-bulk) for which placarding
is required, except for certain transportation by a private carrier
exclusively for agricultural purposes (i.e., nurse tanks, as specified
in 49 CFR 173.315(m)).
(3) Include certain manufacturers and reconditioners of packagings
used in the transportation of hazardous materials.
(4) Include all transport vehicles and freight containers which
contain more than 400 kg (882 pounds) of a hazardous material.
This alternative was not selected primarily because it would place
an even greater burden on small shippers and carriers, thereby
increasing the inequity that exists in the current fee structure.
Moreover, in some cases, this may not add a significant number of
persons required to register.
For example, RSPA recently proposed [Docket HM-206, NPRM; 59 FR
41848; August 15, 1994] several improvements to the existing hazard
communications system that were identified as necessary by commenters
to the ANPRM [Docket HM-206; 57 FR 24532; June 9, 1992], the National
Academy of Sciences in its Special Report 239, ``Hazardous Materials
Shipment Information for Emergency Response'', and agency initiative.
RSPA is proposing to lower from 2,268 kg (5,000 pounds) to 1,000 kg
(2,205 pounds) the quantity for specific hazard class placarding when
one category of material is loaded on a transport vehicle at one
loading facility. However, it seems probable that most persons who
offer or transport at least one shipment per year of more than 1,000 kg
of one class of a hazardous material will offer or transport at least a
similar shipment that exceeds 2,268 kg. If so, lowering the threshold
quantity, for shipments of hazardous materials in non-bulk packagings,
would not result in a significant number of new persons having to file
a registration statement.
However, RSPA is proposing, in this rulemaking, to broaden 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 would add 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. It is not likely that this change will add a substantial
number of persons that are required to register.
Commenters are encouraged to provide specific comments as to
whether the registration requirement should be expanded in any way,
including the desirability of making it parallel to the proposed
placarding requirement, i.e., to 1,000 kg or more of any single class.
Commenters should also provide information on the effect of any such
expansion of the registration requirement, including an estimate of the
number of additional persons that would be required to register.
C. Fee Reductions in Subsequent Years
Under 49 U.S.C. 5108(g)(2)(B), adjustments in registration fee
levels are required if there is an uncommitted balance in the
registration fee account. Therefore, if any new fee levels are adopted
and result in the collection of fees significantly greater than the
approximately $19 million authorized by 49 U.S.C. 5116 and 5127, RSPA
proposes to make proportional reductions, on a year-by-year basis, in
the registration fees within the statutory limits ($250.00-$5,000.00).
This would be announced by publication of a notice in the Federal
Register at least 60 days prior to the beginning of the registration
year.
IX. An Industry Perspective
During May 1994, an industry working group was organized by the
Hazardous Materials Advisory Council to review the current registration
program and to make recommendations to RSPA in regard to the future of
the program. Recommendations, dated September 23, 1994, were received
and are available in the public docket. They will be reviewed and
considered during this proceeding.
X. Section-By-Section Summary
Section 107.601
In paragraph (c), the entry for materials extremely toxic by
inhalation would be revised to include every ``material poisonous by
inhalation,'' as defined in 49 CFR 171.8, that meets the criteria for
Hazard Zone A. This proposed requirement effectively captures poison
inhalation hazard, Hazard Zone A, materials in divisions other than
Division 2.3 and Division 6.1 (e.g., isobutyl isocyanate, a Class 3
hazardous material). The Hazard Zone A assignment for isobutyl
isocyanate, and certain other materials, is specifically communicated
through reference to Special Provision 1 in column 7 of the Hazardous
Materials Table.
Section 107.606
This proposed revision would remove the July 1, 1996 limitation on
the exception for foreign offerors. In paragraph (b), RSPA proposes to
apply the registration and fee payment requirements to foreign offerors
domiciled in any country that requires offerors domiciled in the United
States to file a registration statement or pay a fee. See also the
discussion in Section III.B. of this preamble.
Section 107.612
In this proposed rule, all persons currently required to file a
registration statement with RSPA would continue to be assessed an
annual registration fee, at a minimum, of $250.00, plus a $50.00
processing fee, for a total of $300.00. In addition, RSPA is proposing
graduated registration fee levels, up to a maximum of $5,000.00 (plus
the $50.00 processing fee), to which certain registrants would be
subject on the basis of having offered or transported during the prior
calendar year: a highway route controlled quantity of Class 7
(radioactive) materials; certain size shipments of Division 1.1, 1.2 or
1.3 (explosive) materials, or materials extremely toxic by inhalation;
or a specified number of different bulk packagings.
The entire schedule of fees appears in a table within paragraph
(a). The fees are keyed to the five activities for which registration
is mandatory, and, where appropriate, specified in increments generally
related to the quantity of hazardous material offered for
transportation or transported.
In paragraph (b), RSPA is proposing a provision to proportionally
reduce fees in subsequent registration years based on uncommitted
balances, if any, in the grant account.
Section 107.616
Paragraphs (d)(2) and (d)(3) would be revised to provide
procedures for the payment of any applicable increased fee required by
the proposed amendment to Sec. 107.612 when submitting a registration
statement under the provisions of an expedited registration.
XI. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed 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. The rule is not considered a major
rule under the Regulatory Policies and Procedures of [[Page 5827]] the
Department of Transportation [44 FR 11034] because its economic impact
on certain hazardous materials offerors and transporters is not
expected to exceed $100 million annually. This proposal is expected to
generate additional registration fees of approximately $12 million per
year. A preliminary 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 proposed 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 proposed rule maintains the minimum fee requirement for small
shippers and carriers of hazardous materials who are subject to the
registration requirement. Therefore, I certify that this proposal will
not, if promulgated, have a significant economic impact on a
substantial number of small entities. This certification is subject to
modification as a result of a review of comments received in response
to this proposal.
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 proposed 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
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 107 is proposed to
be amended as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for part 107 would continue 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) would be 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 would be 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
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, 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 affected by this determination shall file a
registration statement and pay the required fee no later than 60 days
following publication of the determination in the Federal Register.
4. Section 107.612 would be revised to read as follows:
Sec. 107.612 Amount of fee.
(a) Each person subject to the requirements of this subpart shall
report its activities and pay the highest single (not aggregate) annual
fee (which includes a $50.00 processing fee) that reflects the type and
quantity of hazardous materials offered for transportation or
transported into, from, or within the United States during the prior
calendar year, as specified in the following table:
[[Page 5828]]
Registration Fee Table for Hazardous Materials Activities
------------------------------------------------------------------------
Total
Type of hazardous material Quantity annual fee
------------------------------------------------------------------------
Radioactive Material. A One (1) or more packages.... $5,050.00
highway route controlled
quantity of a Class 7
(radioactive) material, as
defined in Sec. 173.403(l)
of this chapter.
Explosive Material. A 10,000 kg (22,046 pounds) or 5,050.00
Division 1.1, 1.2 or 1.3 more.
explosive material, as
defined in Sec. 173.50 of
this chapter, in a motor
vehicle, rail car or freight
container.
1,000 kg (2,205 pounds) or 2,550.00
more but less than 10,000
kg (22,046 pounds).
More than 25 kg (55 pounds) 300.00
but less than 1,000 kg
(2,205 pounds).
Extremely Toxic by 13,248 L (3,500 gallons) or 5,050.00
Inhalation. A ``material more.
poisonous by inhalation,''
as defined in Sec. 171.8 of
this chapter, that meets the
criteria for ``hazard zone
A'' (see Secs. 173.116(a)
and 173.133(a) of this
chapter) in a packaging
having a capacity of--.
More than 450 L (119 2,550.00
gallons) but less than
13,248 L (3,500 gallons).
More than 1 L (1.06 quart) 300.00
but less than or equal to
450 L (119 gallons).
Hazardous Material in a Bulk 8 or more different tank 5,050.00
Packaging. A hazardous cars, or 24 or more
material in a bulk different other bulk
packaging, as defined in packagings.
Sec. 171.8 of this chapter,
having a capacity equal to
or greater than 13,248 L
(3,500 gallons) for liquids
or gases or more than 13.24
cubic meters (468 cubic
feet) for solids and the
number of different
packagings used during the
year is--.
4-7 different tank cars, or 2,550.00
12-23 different other bulk
packagings.
1-3 different tank cars, or 500.00
1-11 different other bulk
packagings.
Placarded Hazardous Material One (1) or more shipments of 300.00
That is Not in a Bulk hazardous materials in
Packaging. other than a bulk packaging
of 2,268 kg (5,000 pounds)
gross weight or more of one
class of hazardous material
for which placarding of a
vehicle, rail car, or
freight container is
required for that class,
under provisions of subpart
F of part 172 of this
chapter.
During the prior calendar Will offer for 300.00
year did not engage in any transportation or transport
of the above activities. during this registration
year a hazardous material
as specified above.
------------------------------------------------------------------------
(b) For any registration year the Administrator may reduce, in a
proportional amount, all the amounts greater than $300.00 indicated in
the registration fee table in paragraph (a) of this section to reflect
any uncommitted balance in the account established under 49 U.S.C.
5116. Notice of such adjustments will be published in the Federal
Register no later than April 1 prior to the beginning of the
registration year affected.
5. In Sec. 107.616, paragraphs (d)(2) and (d)(3) would be revised
to read as follows:
Sec. 107.616 Payment procedures.
* * * * *
(d) * * *
(2) Pay $350.00 (including the $50.00 processing fee and an
additional $50.00 expedited handling fee); and
(3) Submit all of the following to RSPA before the expiration date
of the temporary registration number:
(i) A completed registration statement;
(ii) Proof of $350.00 payment; and
(iii) Payment of any balance of the annual fee (as specified in
Sec. 107.612) in excess of $300.00.
Issued in Washington DC on January 25, 1995 under the authority
delegated in 49 CFR part 106, Appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-2281 Filed 1-26-95; 10:20 am]
BILLING CODE 4910-60-P
