Proposed Rule2022-20350
Hazardous Materials: Adjusting Registration and Fee Assessment Program
Primary source
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Published
September 22, 2022
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is publishing this ANPRM to solicit feedback on potential adjustments to the statutorily mandated hazardous materials registration and fee assessment program. Actions such as the potential adjustment of fees or the addition of other entities among those required to register may be necessary to fund PHMSA's national emergency preparedness grant programs at the newly authorized level in accordance with the Infrastructure Investment and Jobs Act of 2021. To fully engage with stakeholders, this ANPRM solicits comments and input on questions related to the scope of the registration and fee assessment program. Any comments, data, and information received will be used to evaluate and draft proposed amendments.
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<title>Federal Register, Volume 87 Issue 183 (Thursday, September 22, 2022)</title>
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[Federal Register Volume 87, Number 183 (Thursday, September 22, 2022)]
[Proposed Rules]
[Pages 57859-57863]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20350]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107
[Docket No. PHMSA-2022-0033 (HM-208J)]
RIN 2137-AF59
Hazardous Materials: Adjusting Registration and Fee Assessment
Program
AGENCY: Pipeline and Hazardous Materials Safety Administration
[[Page 57860]]
(PHMSA), Department of Transportation (DOT).
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: PHMSA is publishing this ANPRM to solicit feedback on
potential adjustments to the statutorily mandated hazardous materials
registration and fee assessment program. Actions such as the potential
adjustment of fees or the addition of other entities among those
required to register may be necessary to fund PHMSA's national
emergency preparedness grant programs at the newly authorized level in
accordance with the Infrastructure Investment and Jobs Act of 2021. To
fully engage with stakeholders, this ANPRM solicits comments and input
on questions related to the scope of the registration and fee
assessment program. Any comments, data, and information received will
be used to evaluate and draft proposed amendments.
DATES: Comments must be received by December 21, 2022. However, PHMSA
will consider late-filed comments to the extent possible.
ADDRESSES: You may submit comments identified by the docket number
PHMSA-2022-0033 (HM-208J) by any of the following methods:
<bullet> Federal e-Rulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the online instructions for submitting comments.
<bullet> Fax: (202) 493-2251.
<bullet> Mail: Docket Management System, U.S. Department of
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590.
<bullet> Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140 in the West Building, 1200
New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number (PHMSA-2022-0033) or RIN 2137-AF59 for this ANPRM at the
beginning of the comment. Note that all comments received will be
posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a> including any
personal information provided. If sent by mail, comments must be
submitted in duplicate. Persons wishing to receive confirmation of
receipt of their comments must include a self-addressed stamped
postcard.
Docket: For access to the dockets to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> or DOT's Docket
Operations Office; see ADDRESSES.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and treated as private by its owner. Under the Freedom of
Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this ANPRM contain
commercial or financial information that is customarily treated as
private, that you treat as private, and that is relevant or responsive
to this ANPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPRIETARY.'' PHMSA will treat such marked submissions as
confidential under the Freedom of Information Act (FOIA) and they will
not be placed in the public docket of this ANPRM. Submissions
containing CBI should be sent to Yul B. Baker Jr., Standards and
Rulemaking Division, Office of Hazardous Materials Safety, (202) 366-
8553, PHMSA, East Building, PHH10, 1200 New Jersey Avenue SE,
Washington, DC 20590. Any commentary that PHMSA receives, which is not
specifically designated as CBI, will be placed in the public docket for
this rulemaking.
FOR FURTHER INFORMATION CONTACT: Yul B. Baker Jr., Standards and
Rulemaking Division, Office of Hazardous Materials Safety, (202) 366-
8553, PHMSA, East Building, PHH10, 1200 New Jersey Avenue SE,
Washington, DC 20590 and Adam Lucas, Operations System Division, Office
of Hazardous Materials Safety, (202) 366-1074 PHMSA, East Building,
PHH-60, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Number of Registrants for Registration Year 2021-22
III. Registration Fee Scenario Table
IV. Options for Public Comment
I. Background
PHMSA is considering an adjustment to our statutorily mandated
registration and fee assessment program for persons who transport or
offer for transportation certain categories and quantities of hazardous
materials. PHMSA conducts a national hazardous materials registration
program under the mandate in 49 U.S.C. 5108 for a person \1\ who offers
for transportation or transports certain hazardous materials in
intrastate, interstate, or foreign commerce. The registration program
implements the mandate for persons to file a registration statement
with the Secretary of Transportation--as delegated to PHMSA--and
collects registration and processing fees from persons required to file
a registration statement (hereafter referred to as ``registrants'') to
fund Emergency Preparedness (EP) grants. EP grants support hazardous
materials emergency response planning and training activities by
states, local governments, and Native American Tribes. EP grants also
fund non-profit organizations to provide ``train-the-trainer'' programs
for hazardous materials emergency response training and hazardous
materials employee training. Additionally, EP grants support the
development of the Emergency Response Guide (ERG) and provides funds
for grantee monitoring and technical assistance.
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\1\ Defined in 49 CFR 171.8.
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As noted above, registration and fee requirements \2\ apply to a
person who offers for transportation--or who transports--hazardous
material in foreign, interstate, or intrastate commerce. Specifically,
the requirements apply to shippers and carriers if they offer or
transport the following:
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\2\ See Sec. 107.601 Applicability.
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1. A highway route-controlled quantity of a Class 7 (radioactive)
material.
2. More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material in a motor vehicle, rail car or freight container.
3. More than one L (1.06 quarts) per package of a material
extremely toxic by inhalation.
4. A shipment of a quantity of hazardous materials in a bulk
packaging 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.
5. A shipment in other than a bulk packaging of 2,268 kg. (5,000
pounds) gross weight or more of one class of hazardous materials for
which placarding of a vehicle, rail car, or freight container is
required.
6. Except for certain farming operations, a quantity of hazardous
material that requires placarding.
Furthermore, PHMSA has discretion to require additional persons to
register--beyond those who offer, and transport certain 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(b), 5116, and 5128(b).
PHMSA may currently set an annual registration
[[Page 57861]]
fee between a minimum of $250 and maximum of $3,000.
Since 2010, the annual registration fee has been set at $250 (plus
a $25 processing fee) for small businesses \3\ and not-for-profit
organizations (hereafter referred to as ``small businesses'') and
$2,575 (plus a $25 processing fee) for not small businesses (hereafter
referred to as ``large businesses'') in accordance with 49 CFR
107.612(b).
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\3\ ``Small Business'' here is defined as either a ``small
business'' per the SBA or a non-profit, which statutorily pay the
same rate as small businesses, regardless of size.
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On November 15, 2021, President Biden signed the Infrastructure
Investment and Jobs Act of 2021 (Pub. L. 117-58)--commonly known as the
``Bipartisan Infrastructure Law'' (BIL) \4\--into law and authorized
the Secretary of Transportation to expend $46,825,000 from EP funds to
carry out the grants program, for fiscal years 2022 through 2026. As
such, the BIL increases the authorized level of the EP grants program
by $18,507,000. To fully fund the EP grants program to the increased
authorization amounts, PHMSA will need to adjust fees for the national
registration and fee program.
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\4\ See BIL at: <a href="https://www.congress.gov/117/bills/hr3684/BILLS-117hr3684enr.pdf">https://www.congress.gov/117/bills/hr3684/BILLS-117hr3684enr.pdf</a>.
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The current registration fee structure does not consider the
relative risk of applicants, products, transport routes, or other
relative risks (or lack thereof) imposed by an applicant to the public
due to the specific hazardous materials being transported. This poses
challenges and potential opportunities for improvement, consistent with
market-based principles as well as principles of equity and fairness:
the potential for a registration scheme that reflects many applicants'
relatively minor imposition of risk on the public as well as a more
equitable fee structure for the few entities that pose a
disproportionately larger risk on the public.
II. Number of Registrants for Registration Year 2021-22 \5\
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\5\ A registration year runs from July 1 of the current year to
June 30 of the following year.
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Using the current registration year 2021-22 as an example, there
were 25,529 small business registrants that paid $6,382,250 in
registration fees and $638,225 in processing fees--while there were
6,673 large business registrants that paid $17,183,975 in registration
fees and $166,825 in processing fees. The total funds from all
registrants--not including processing fees--were approximately
$23,565,225 for the registration year. PHMSA may collect additional
monies to fund EP grants at the increased authorization level of
$46,825,000 specified in the BIL. As one approach, PHMSA has asked
Congress for authorization to increase the maximum fee for a registrant
as a possible means to collect additional funds. Other approaches
include expanding the pool of persons subject to registration or
increasing fee amounts from current levels. Though more complicated, an
additional approach could involve any number of factors to capture fees
based on the relative risk an applicant poses via the transportation of
hazardous material goods.
Historically, as noted in Section I. ``Background,'' there are
triggering requirements for registration and fee payments based on
certain types of transport activity performed by a shipper or carrier.
If a company is required to register, assigned fees are based on the
type and size of the business performing the activity. PHMSA is
contemplating an approach of factoring in the level of exposure or risk
introduced by a shipper or carrier when assigning fees--for example, if
a business operates globally and transports a particularly hazardous
material, it might incur a slightly higher fee than a smaller business,
which poses a relatively minor risk to the public and may therefore
incur a lower fee. Thus, in this ANPRM, PHMSA solicits comment from the
public on how best to collect additional funding and to help initiate
ideas on different approaches. PHMSA provides a registration fee
scenario table in Section III. ``Registration Fee Scenario Table'' to
offer a basic illustration of the potential impacts of the fee changes
to registrants. Section IV. ``Options for Public Comment'' provides
specific scenarios PHMSA is considering for collecting additional funds
as well as discussion of potential research for development of a
methodology for a more equitable registration scheme. The scenarios are
split into two categories of options: (1) based on the current maximum
fee remaining at $3,000; and (2) based on the possibility of increasing
the maximum fee.
III. Registration Fee Scenario Table
To achieve full funding at the new authorized spending level to
fund the EP grants program, PHMSA presents a fee scenario table as
visual aid on possible impacts of raising funds from potential sources
by increasing the fees on large businesses, increasing the number of
large businesses required to register, or any combination thereof.
<bullet> Scenarios A and B involve scenarios in which the entire
required sum is raised exclusively by increasing one of the sources.
For example, raising only the fee paid by large businesses, but leaving
small business fees and registration requirements unchanged. The
purpose of providing these scenarios is not to necessarily suggest
their adoption, but rather to illustrate the outer limits of the
potential factors necessary to raise additional funding.
<bullet> Scenarios C-D represent two potential hybrid scenarios, in
which additional funding is attained from raising several sources,
rather than a single source. The purpose of providing these scenarios
is to illustrate how a combination of higher fees and expanded
registration requirements could achieve the desired funding level.
Therefore, PHMSA requests comments and feedback on how best to balance
the factors illustrated in the table below to reach the Congressional
funding amount, including alternative combinations of raising rates and
the possibility of expanding registration requirements.
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Number of Rate paid by
Alternative scenarios for small small Number of large Rate paid by large Small business burden Total
registrants businesses businesses businesses businesses collected
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Baseline: No change................ 27,723 $250 6,886................ $2,575............... 28.10%............... $24,662,200
Scenario A:
All additional funds come from 27,723 $250 6,886................ $5,794............... 14.8%................ 46,825,000
large businesses: No expansion
of registration requirements
(i.e., how much should we
raise fees on large businesses
to avoid impacting small
businesses?).
[[Page 57862]]
Results for Scenario A: To .............. .............. ..................... 2.25x increase....... -13.3% change in ..............
maintain current registration small business
requirements or rates for burden.
small businesses, the annual
rate charged for large
businesses would have to
increase to $5,794.
Scenario B:
Fees are fixed: All additional 27,723 $250 15,493............... $2,575............... 14.80%............... 46,825,000
funds come from expanding the
registration requirements for
large businesses..
Results for Scenario B: To .............. .............. 2.25x increase in ..................... -13.3% change in ..............
maintain current rates charged large business small business
to either small businesses or applicant pool. burden.
large businesses and not
expand the pool of small
businesses, the total number
of large businesses charged
would have to increase to
15,493.
Scenario C:
Fees on large businesses are 27,723 $250 12,911............... $3,090............... 14.8%................ 46,825,000
raised 20%: Additional funds
come from expanding the
registration requirements for
large businesses..
Results for Scenario C: Raising .............. .............. 1.87x increase....... 1.20x increase....... -13.3% change in ..............
the fee on large businesses by small business
20% but holding small business burden.
fees constant requires a 1.87x
increase in eligibility for
large businesses.
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Number of Number of
Alternative scenario for Number of Rate paid ``non-high Rate paid by ``non- ``high- Rate paid by
registrants considered to be small by small risk'' high risk'' large risk'' ``high risk'' Small business Total
``non-high risk'' large businesses businesses large businesses large large businesses burden collected
businesses businesses businesses
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Scenario D:
Assume 25% of large 27,723 $250 5,165 $3,000............ 1,722 $14,182........... 14.8%............. $46,825,000
businesses are identified
as ``high risk.'' Fees for
small businesses are
unchanged. Fees for ``non-
high risk'' large
businesses are increased
to the statutory limit of
$3,000. No increased
eligibility. All
additional revenue comes
from fees on ``high risk''
large businesses.
Results for Scenario D: The .......... .......... .......... 1.17x increase.... .......... 5.5x increase..... -13.3% change in ...........
25% of large businesses small business
deemed to be ``high risk'' burden.
would have to pay a
registration fee of
$14,182, 5.5x higher than
their current registration
fee..
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Notes:
1. Bold figures represent the amount each variable would have to be set to make up the additional funding.
2. Bold and italicized figures represent the factor difference between the proposed level and baseline.
3. Information for table was sourced from PHMSA's Registration Dataset.
IV. Options for Public Comment
The table above provides combinations of increased rates or
expanded registration requirements to achieve the increased funding
level. PHMSA requests feedback on these potential methods, and any
alternate methods PHMSA should consider, to achieve the increased
funding. Additionally, please address in your submission any impact on
policy considerations (e.g., equity/distributional impacts or impact on
small businesses) advocating for or against different options.
If registration fees remain at a maximum $3,000 per year, PHMSA is
considering the following options for comment:
1. Keep the existing registration requirements (see 49 CFR 107.601)
and raise the registration fee for large businesses from $2,575 to
$3,000.
2. Keep the existing registration requirements and apply a nominal
fee (e.g., $25) for each facility or geographic location from which a
registered person (i.e., a company) offers for transportation, or
transports, certain hazardous materials.
3. Modify assignment of the registration fee and/or amount based on
the commensurate hazard posed (e.g., shipping Packing Group I materials
vs. Packing Group III materials) \6\ or risk profile (e.g., frequent
vs. infrequent shipments).
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\6\ Packing group means a grouping according to the degree of
danger presented by hazardous materials. Packing Group I indicates
great danger; Packing Group II, medium danger; Packing Group III,
minor danger.
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4. Expand the registration requirements--for example, certain
hazardous materials are not subject to placarding when shipped
domestically, and therefore a person who offers for transportation, or
transports, these materials are generally exempt from registration--but
could be expanded with appropriate risk-based justifications.
5. Expand the registration fee requirements to include certain
persons who acquire approvals or special permits from PHMSA that
otherwise are not subject to registration, but which should be based on
a public risk-based justification.
If Congress allows an increase in the maximum fee, PHMSA is
considering the following options for comment:
1. Maintain the current maximum registration fees and create an
upper tier of a higher fee for a certain category of very large
businesses. If this approach is preferred, how should PHMSA define a
``very large business?'' Specifically, what risk factors should go into
determining a very large business classification, to better account for
market-based risks to the public as well as equity factors between
applicants.
2. Change the registration requirements to reduce the overall
number of registrants.
3. Keep the existing registration requirements and raise the
registration
[[Page 57863]]
fee for large businesses from $2,575 to a dollar value below the
Congressionally authorized maximum fee (e.g., if the maximum allowed
were increased from $3,000 to $5,000).
4. Raise fees for specific business types, classes of material, or
commodities (e.g., poisonous by inhalation material), which are
considered extremely high risk.
Registration Fee Equity
PHMSA may initiate a research effort to develop a methodology that
could replace the existing two-tier registration structure with a more
equitable system. This action would help address transportation equity
by basing the fee structure on the amount of risk introduced into the
transportation system by an entity. This work would build on the
questions above (i.e., if registration fees remain at a maximum $3,000
per year). While PHMSA considers initiating this research effort, PHMSA
does have two related questions that may help us determine the
potential scope and how to formulate the research effort:
1. What risk factors of transporting hazardous materials should
PHMSA consider?
2. What data or information is available to support the choice of
these risk factors and methodology? Please provide all data or
information you would like PHMSA to consider.
As noted above, PHMSA seeks comment on each of these questions and
proposals, as well as any additional options not included in the above-
outlined discussions.
Issued in Washington, DC, on September 15, 2022, under the
authority delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2022-20350 Filed 9-21-22; 8:45 am]
BILLING CODE 4910-60-P
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