Proposed Rule2024-11391
Hazardous Materials: Adjusting Registration and Fee Assessment Program
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Published
May 24, 2024
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
In order to account for increased transport of hazardous materials as well as the burdens such transport places on first responders, PHMSA proposes overdue updates to the registration fees under the statutorily mandated registration and fee assessment program for persons who transport, or offer for transportation, certain categories and quantities of hazardous materials. PHMSA's proposal would increase the annual fee to be paid by those registrants qualifying as a small business or not-for-profit organization by $125 to $375 and by those registrants not qualifying as a small business or not-for-profit organization by $425 to $3,000. Actions such as fee adjustments are necessary to fund PHMSA's Hazardous Materials Emergency Preparedness grants program at newly authorized levels in accordance with the Infrastructure Investment and Jobs Act (Pub. L. 117-58). PHMSA also proposes to implement an electronic-only registration fee payment process. Finally, PHMSA proposes to revise requirements to clarify that a certificate of registration may be carried in either electronic or paper form for both motor carriers and those who transport hazardous materials by vessel.
Full Text
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<title>Federal Register, Volume 89 Issue 102 (Friday, May 24, 2024)</title>
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[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Proposed Rules]
[Pages 45806-45813]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11391]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 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 (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: In order to account for increased transport of hazardous
materials as well as the burdens such transport places on first
responders, PHMSA proposes overdue updates to the registration fees
under the statutorily mandated registration and fee assessment program
for persons who transport, or offer for transportation, certain
categories and quantities of hazardous materials. PHMSA's proposal
would increase the annual fee to be paid by those registrants
qualifying as a small business or not-for-profit organization by $125
to $375 and by those registrants not qualifying as a small business or
not-for-profit organization by $425 to $3,000. Actions such as fee
adjustments are necessary to fund PHMSA's Hazardous Materials Emergency
Preparedness grants program at newly authorized levels in accordance
with the Infrastructure Investment and Jobs Act (Pub. L. 117-58). PHMSA
also proposes to implement an electronic-only registration fee payment
process. Finally, PHMSA proposes to revise requirements to clarify that
a certificate of registration may be carried in either electronic or
paper form for both motor carriers and those who transport hazardous
materials by vessel.
DATES: Comments must be received by August 22, 2024. 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
[[Page 45807]]
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 NPRM 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 NPRM contain commercial
or financial information that is customarily treated as private, that
you treat as private, and that is relevant or responsive to this NPRM,
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 NPRM. 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. ANPRM and Comments
III. Public Meeting
IV. Summary of the Proposal To Fund the HMEP Grants Program
V. Multi-Year Registrations
VI. Section-by-Section Review of Changes
VII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866, 14094, and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Draft Environmental Assessment
I. Privacy Act
I. Background
Since 1992, the Research and Special Programs Administration
(RSPA)--now known as the Pipeline and Hazardous Materials
Administration (PHMSA)--has conducted a national registration program
for persons who offer for transportation or transport certain hazardous
materials in intrastate, interstate, or foreign commerce (see 49 U.S.C.
5108). The registration program implements the mandate for persons to
file a registration statement with the Secretary of Transportation
(Secretary)--as delegated to PHMSA--and collects registration and
processing fees from these registrants. The purpose of the registration
program is to fund the Hazardous Materials Emergency Preparedness
(HMEP) grants program and any additional related activities \1\ and to
gather information regarding the transportation of hazardous materials.
The HMEP grants program supports hazardous materials emergency response
planning and training activities by states, local governments, and
Native American Tribes--ensuring first responders are well trained and
prepared to respond to hazardous materials related incidents. HMEP
grants also fund non-profit organizations to provide ``train-the-
trainer'' and direct training programs for hazardous materials
emergency response training and hazardous materials employee training.
Additionally, HMEP grants support the development of the Emergency
Response Guidebook (ERG)--provided to and used by nearly every fire
department in the U.S.--and provides funds for grantee monitoring and
technical assistance.
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\1\ See 49 U.S.C. 5116(a), (e), (h)(3), (i), (j), and 5107(e).
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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.\2\ PHMSA must currently set an annual registration fee
between a statutory prescribed minimum of $250 and maximum of $3,000.
The annual registration fee is currently set at $250 (plus a $25
processing fee) for registrants qualifying as small businesses or not-
for-profit organizations (hereafter referred to as ``small
businesses'') and $2,575 (plus a $25 processing fee) for registrants
not qualifying as a small businesses or not-for-profit organizations
(hereafter referred to as ``large businesses'') in accordance with 49
CFR 107.612(b).
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\2\ 49 U.S.C. 5108(a)(2) and (g)(2)(A).
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On November 15, 2021, President Biden signed the Infrastructure
Investment and Jobs Act \3\ into law--commonly known as the
``Bipartisan Infrastructure Law'' (BIL)--and authorized the Secretary
to expend $46,825,000 from emergency preparedness funds to carry out
the grants program, for fiscal years 2022 through 2026. As such, the
BIL increased the authorized funding level by $18,507,000. Also, on
March 9, 2024, the President signed the Consolidated Appropriations Act
of 2024 \4\ which raised the obligation limitation from a previous
level of $28,318,000 to $46,825,000. This increase gives PHMSA the
ability to make legal commitments--in the form of grants--at the new
authorized level. To achieve full funding of the grants program at the
increased amount, PHMSA will need to adjust the fees for the national
hazardous materials transportation registration and fee program. While
the grant size and ability to commit funds has increased, PHMSA remains
constrained by the $3,000 statutory maximum registration fee and thus
is proposing to set fees within that limitation.
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\3\ Public Law 117-58.
\4\ Public Law 118-42.
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II. ANPRM and Comments
PHMSA published an advance notice of proposed rulemaking (ANPRM),
HM-208J,\5\ titled ``Hazardous Materials: Adjusting Registration and
Fee Assessment Program'' to solicit feedback
[[Page 45808]]
on potential adjustments to the applicability and fees under the
hazardous materials registration and fee assessment program. PHMSA
received a total of seven sets of comments from persons that represent
various industry companies and associations. Based on comments received
by PHMSA, commenters generally opposed raising fees on small
businesses, but were supportive of maintaining the two-tiered system
currently in place. Commenters also expressed support for Congress to
raise the statutory fee limit for both small and large businesses. An
alphabetical listing of commenters to the HM-208J ANPRM can be found in
the following table:
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\5\ 87 FR 57860 (Sept. 22, 2022).
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Commenter name Docket No.
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American Chemistry Council (ACC)........... PHMSA-2022-0033-0006.
Council on the Safe Transportation of PHMSA-2022-0033-0004.
Hazardous Articles (COSTHA).
Dangerous Goods Advisory Council (DGAC).... PHMSA-2022-0033-0002.
Energy Marketers of America (EMA).......... PHMSA-2022-0033-0008.
Interested Parties for Hazardous Materials PHMSA-2022-0033-0003.
Transportation.
International Vessel Operators Dangerous PHMSA-2022-0033-0005.
Goods Association (IVODGA).
Owner-Operator Independent Drivers PHMSA-2022-0033-0007.
Association (OOIDA).
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The comments submitted to the docket for this rulemaking may be
accessed for review via the docket file numbers listed in the above
table at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
III. Public Meeting
PHMSA published a notice of public meeting in the Federal Register
\6\ titled ``Hazardous Materials: Adjusting Registration and Fee
Assessment Program; Notice of Public Meeting'' notifying the public
that a meeting would be held on June 28, 2023, to solicit additional
feedback and input on potential adjustments to the hazardous materials
registration and fee assessment program. Prior to the public meeting,
PHMSA received three sets of comments from persons that represent
various industry companies and associations. Based on comments received
by PHMSA, commenters were supportive of maintaining the two-tiered
system, raising fees on large businesses, and raising the fees on small
businesses with a proportional increase. Commenters also expressed
support for Congress to raise the statutory fee limit for both small
and large businesses. An alphabetical listing of commenters to the
public meeting can be found in the following table:
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\6\ 88 FR 34227 (May 26, 2023).
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Commenter name Docket No.
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American Chemistry Council (ACC)........... PHMSA-2022-0033-0012.
Corteva Agriscience........................ PHMSA-2022-0033-0011.
Interested Parties for Hazardous Materials PHMSA-2022-0033-0010.
Transportation.
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The comments submitted to the docket and the audio transcripts for
the public meeting may be accessed for review via the docket file
numbers listed in the above table at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
IV. Summary of the Proposal To Fund the HMEP Grants Program
A registration fee system should be straightforward: employ an
equity factor while reflecting the differences in the level of risk to
the public and the financial impact associated with the activities of
large and small businesses and ensure adequate funding for the HMEP
grants program. When the ANPRM was published, PHMSA considered the
following alternatives for achieving the newly authorized funding level
available for the HMEP grants program:
1. Keeping the existing registration applicability and raising the
registration fee for large businesses from $2,575 to $3,000.
2. Keeping the existing registration requirements and applying a
nominal fee (i.e., $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. Expanding the registration applicability--for example, certain
Class 9 materials such as lithium batteries or environmentally
hazardous materials are not subject to placarding when shipped
domestically, and therefore a person who offers for transportation, or
transports, these materials are generally currently excepted from
registration.
4. Expanding the registration applicability to include persons who
acquire approvals or special permits from PHMSA that otherwise are not
subject to registration.
5. Changing the registration applicability to reduce the overall
number of registrants.
6. Raising fees for specific business types, classes of hazardous
material, or specific commodities (e.g., a poison by inhalation
material) of extremely high risk.
PHMSA did not receive substantive input from commenters that would
aid PHMSA in determining which direction should be taken to raise the
funds necessary to fully fund the newly authorized limits in support of
the HMEP grants program. Further, Congress encouraged PHMSA to ensure
small businesses are not disproportionately affected by ``reasonable,
limited fee changes.'' PHMSA has concluded that the most equitable
approach to raising additional funds at this time is to adjust for
inflation the fee for both small and large businesses. Although small
businesses generally offer for transportation or transport fewer and
smaller amounts of hazardous materials shipments as compared to larger
businesses, PHMSA notes that the small business fee has not been raised
since it was adjusted to $250 in 2006.\7\ However, the fee for large
businesses was last adjusted from $975 to $2,575 in 2010.\8\ Although
the fee adjustment percentage increase for small businesses is larger
than the percentage increase for large businesses, PHMSA is limited by
the statutory cap of $3,000 for an annual registration fee. Therefore,
PHMSA cannot charge a fee greater than $3,000 even though an equivalent
proportional adjustment for inflation for large businesses would be
greater than that value.
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\7\ 68 FR 1342 (Jan. 9, 2003).
\8\ 75 FR 15613 (Mar. 30, 2010).
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[[Page 45809]]
For registration year 2022-2023, there were 27,723 small business
registrants that paid $6,930,750 in registration fees and $693,075 in
processing fees. There were 6,886 large business registrants that paid
$17,731,450 in registration fees and $172,150 in processing fees. The
total funds from registrants--not including processing fees--were
approximately $24,662,200, which was less than the $28,318,000
obligated limitation Congress has included in PHMSA's annual
appropriation for many years. Currently under the BIL, the authorized
funding level has increased to $46,825,000 and if the current fee
structure remains in place, PHMSA will be unable to collect the
necessary funds. Therefore, PHMSA is proposing inflationary increases
to the registration fees for small businesses from $250 to $375 (plus a
$25 processing fee) and for large businesses from $2,575 to $3,000
(plus a $25 processing fee) for registration year 2024-2025 and
following years to make progress toward the statutorily mandated goal
of funding the HMEP grants program at the current authorized level of
$46,825,000. While the 50 percent increase for small businesses is
larger than the 16 percent increase for large businesses, the actual
dollar amount increase for large businesses is about three and half
times larger than small businesses ($425 vs. $125). This is also in the
context that the last upward adjustment for small businesses was in
2006 compared to 2010 for large businesses, which was a substantial
upward adjustment from $975 to $2,575. Furthermore, if PHMSA were to
limit the percentage increase for small businesses to 16 percent
consistent with the percentage increase for large businesses, we would
only generate an additional $1.1 million, which would not make a
significant contribution to achieving the funding levels specified in
both the BIL and the FY24 appropriations. Thus, PHMSA has decided to
apply the full inflationary increase to small businesses, even though
it is a larger percentage increase than what is being applied to large
businesses. PHMSA believes the proposed fee increases are equitable
given the constraints of the statutorily maximum fee allowed of $3,000.
PHMSA remains hopeful that Congress will raise the $3,000 statutory
cap, allowing for future adjustments to large businesses to make the
fee distribution even more equitable and allowing PHMSA to collect and
expend the authorized funding level of $46 million.
V. Multi-Year Registrations
PHMSA allows a person to register up to three years in advance per
registration statement.\9\ PHMSA applies fees according to the fee
structure ultimately established by regulation for the registration
year rather than according to the fee set at the time of payment.
Therefore, if PHMSA were to adopt an increase in registration fees
proposed in this NPRM, additional fees may be required for registration
years paid in advance at the lower levels in effect at the time of
payment.
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\9\ 49 CFR 107.612(c).
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VI. Section-by-Section Review of Changes
A. Section 107.612
This section provides the requirements for determining the
applicable annual registration fee and presents the fee table in
paragraph (b). In support of the increase of the authorized funding
level in the BIL, PHMSA is proposing to amend the table in paragraph
(b) to reflect the proposed fee increases for small businesses at $375
and large businesses at $3,000 starting in registration year 2024-2025.
B. Section 107.616
This section provides the requirements for payment procedures. In
accordance with paragraph (a) of Sec. 107.616, each person subject to
the requirements for registration must mail their registration
statement and payment in full to the U.S. Department of Transportation
or submit the statement and payment electronically through the
Department's e-Commerce internet site. Additionally, in paragraph (b)
of Sec. 107.616, a person must make a payment by certified check,
cashier's check, personal check, or money order in U.S. funds and drawn
on a U.S. bank that is payable to the U.S. Department of Transportation
and the transaction must be identified as payment for the ``Hazmat
Registration Fee'' or by completing an authorization for payment by
credit card or other electronic means of payment acceptable to the
Department on the registration statement or as part of an internet
registration as provided in paragraph (a) of this section. However, the
U.S. Department of the Treasury (``Treasury'') plans to phase out paper
checks in favor of electronic payment due to the continued rising cost
of maintaining a paper system.\10\ To increase efficiency of the
collection of payments made to the federal government, the Treasury's
goal is to reduce the Treasury Lockbox \11\ network volume by 25
percent by the end of 2024 for all paper checks.
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\10\ <a href="https://fmvision.fiscal.treasury.gov/files/Future-of-Financial-Management.pdf">https://fmvision.fiscal.treasury.gov/files/Future-of-Financial-Management.pdf</a>.
\11\ Treasury Lockbox processing is accomplished by Treasury-
designated financial agents that provide lockbox and remittance
services to the Treasury on behalf of federal entities. The
financial agents are strategically located to minimize mail,
processing, and collection. Remittances are mailed directly to a
P.O. Box (i.e., lockbox) established by the financial agent to
collect federal entity mail for processing. The lockbox accelerates
the deposit of funds into the Treasury's account and provides
secure, accurate, and efficient data capture of financial and
remittance data.
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PHMSA has historically used the Lockbox system for collecting
checks for registration fee payments. Treasury has indicated it will no
longer be servicing the PHMSA lockbox because of the small number of
check payments using the system. For example, payments by paper checks
to PHMSA have diminished over the past eight years and can be found in
the following table:
------------------------------------------------------------------------
Reported total
transaction
count (paper
Fiscal year (FY) checks
received by
PHMSA)
------------------------------------------------------------------------
FY 2015................................................. 2,930
FY 2016................................................. 2,336
FY 2017................................................. 1,884
FY 2018................................................. 2,186
FY 2019................................................. 1,653
FY 2020................................................. 949
FY 2021................................................. 859
FY 2022................................................. 693
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The increased use of electronic payments made online versus mailed
paper checks greatly minimizes the need to maintain a lockbox. To meet
the lockbox closure initiative by Treasury, payments for hazardous
materials registration will only be accepted electronically. Therefore,
PHMSA proposes to amend paragraph (a) by removing the reference to
mailing in the registration statement and payment (which implies paper
checks)--and amend paragraph (b) to remove all references to payments
made by certified check, cashier's check, personal check, or money
order.
C. Section 107.620
This section provides the requirements for recordkeeping of the
Certificate of Registration. In paragraph (b) of Sec. 107.620, each
motor carrier subject to the requirements of Subpart G of part 107 must
carry a copy of its current Certificate of Registration issued by PHMSA
or another document bearing the registration number identified as the
``U.S. DOT Hazmat Reg. No.'' onboard
[[Page 45810]]
each truck and truck tractor used to transport hazardous materials.
These requirements are in addition to the paragraph (a) which each
person subject to the requirements of this subpart, or its agent
designated under Sec. 107.608(e), must maintain at its principal place
of business for a period of three years from the date of issuance of
each Certificate of Registration a copy of the registration statement
filed with PHMSA, and the Certificate of Registration issued to the
registrant by PHMSA. These requirements are applicable to each person
subject to registration and can include carriers and offerors of any
mode of transportation.
On January 17, 2023, PHMSA issued a letter of interpretation \12\
clarifying that the requirements in Part 107, Subpart G do not
stipulate that a paper copy of the Certificate of Registration must be
carried onboard a motor vehicle when that vehicle transports hazardous
materials. Rather, the requirements specify that a motor carrier must
carry a copy of the current Certificate of Registration or another
document bearing the registration number onboard each truck and truck
tractor thus allowing for carriage in electronic form. Therefore, PHMSA
proposes to amend paragraph (b) to clarify that both an electronic and
paper form for the Certificate of Registration is acceptable provided
the Certificate of Registration can be made available upon request to
authorized personnel or DOT enforcement personnel. In conformance with
this proposed change, PHMSA is also proposing similar clarifying
amendments to paragraphs (c) and (d) regarding vessel transportation
and furnishing information to authorized personnel (e.g., state highway
patrol) or DOT enforcement personnel, respectively. Finally, PHMSA is
removing sunrise dates from paragraphs (b) and (c) since they have
passed and are no longer relevant to the respective provisions.
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\12\ Letter of Interpretation (Ref. No. 22-0133).
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VII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This NPRM is published under the authority of the Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section
5103(b) of the HMTA authorizes the Secretary of Transportation to
``prescribe regulations for the safe transportation, including
security, of hazardous materials in intrastate, interstate, and foreign
commerce.'' The Secretary has delegated the authority granted in the
HMTA to the PHMSA Administrator at 49 CFR 1.97(b).
B. Executive Order 12866, 14094, and DOT Regulatory Policies and
Procedures
Executive Order 12866 (``Regulatory Planning and Review'') \13\ as
amended by Executive Order 14094 (``Modernizing Regulatory
Review''),\14\ requires that agencies ``should assess all costs and
benefits of available regulatory alternatives, including the
alternative of not regulating.'' Agencies should consider quantifiable
measures and qualitative measures of costs and benefits that are
difficult to quantify. Further, Executive Order 12866 requires that
``agencies should select those [regulatory] approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity), unless a statute requires another regulatory approach.''
Similarly, DOT Order 2100.6A (``Rulemaking and Guidance Procedures'')
requires that regulations issued by PHMSA, and other DOT Operating
Administrations should consider an assessment of the potential
benefits, costs, and other important impacts of the proposed action and
should quantify (to the extent practicable) the benefits, costs, and
any significant distributional impacts, including any environmental
impacts.
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\13\ 58 FR 51735 (Oct. 4, 1993).
\14\ 88 FR 21879 (Apr. 11, 2023).
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Executive Order 12866 and DOT Order 2100.6A require that PHMSA
submit ``significant regulatory actions'' to the Office of Management
and Budget (OMB) for review. This rulemaking is not considered a
significant regulatory action under section 3(f) of Executive Order
12866 (as amended) and, therefore, was not formally reviewed by OMB.
This rulemaking is also not considered a significant rule under DOT
Order 2100.6A. A preliminary regulatory impact Analysis (PRIA) with
estimates of costs and benefits of the rulemaking is available in the
docket. To summarize the findings in the PRIA, PHMSA anticipates that
the increase in fees on existing registrants will generate roughly $6.4
million in additional revenue for the HMEP program. However, because
these fees are simply financial transfers, the proposal to raise fees
will not generate any additional regulatory economic burdens. The same
entities currently registered will be expected to continue to do so,
and the additional fees paid represent their marginal financial burden.
The other two proposed provisions in this rulemaking, the shift to
electronic-only payments, and the option for shippers to carry
electronic registration documentation, are not expected to produce
significant economic costs but may marginally improve efficiency.
Therefore, PHMSA solicits comments on this analysis.
PHMSA does anticipate a small, but insignificant cost savings to
government due to the proposed changed to electronic-only payment in
the amended 49 CFR 107.616. For those that do currently choose to pay
by mailing in a registration statement and check, PHMSA estimates that
the cost of adjusting to the electronic system to be negligible. In
terms of cost savings, PHMSA estimates that converting to an all-
electronic system will save government employees a small amount of
labor because they will no longer have to process paper forms and
checks. Yet, PHMSA estimates this cost savings to be negligible due to
the low volume of payments by check.
C. Executive Order 13132
PHMSA has analyzed this rulemaking in accordance with the
principles and criteria in Executive Order 13132 (``Federalism'') \15\
and its implementing Presidential Memorandum (``Preemption'').\16\
Executive Order 13132 requires agencies to assure meaningful and timely
input by state and local officials in the development of regulatory
policies that may have ``substantial direct effects on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government.''
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\15\ 64 FR 43255 (Aug. 10, 1999).
\16\ 74 FR 24693 (May 22. 2009).
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This rulemaking may preempt state, local, and Native American Tribe
requirements, but does not propose any regulation that has 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.
The Federal Hazardous Materials Law contains an express preemptive
provision \17\ that preempts state, local, and Native American Tribal
requirements on certain subjects, unless the non-federal requirements
are ``substantively the same'' as the federal requirements, including:
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\17\ 49 U.S.C. 5125(b).
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1. Designation, description, and classification of hazardous
materials;
2. Packing, repacking, handling, labeling, marking, and placarding
of hazardous materials;
[[Page 45811]]
3. Preparation, execution, and use of shipping documents related to
hazardous materials and requirements related to the number, contents,
and placement of those documents;
4. Written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
5. Design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This rulemaking does not address any subject items such as the
abovementioned list. Therefore, the proposed amendments in this
rulemaking will not have 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. Moreover, the proposed amendments in this rulemaking do not
impose direct compliance costs on state and local governments.
D. Executive Order 13175
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Native American Tribal Governments'') \18\ and DOT
Order 5301.1A, ``Department of Transportation Tribal Consultation
Policy and Procedures.''
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\18\ 65 FR 67249 (Nov. 9, 2000).
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Executive Order 13175 and DOT Order 5301.1A require DOT Operating
Administrations to assure meaningful and timely input from Native
American Tribal government representatives in the development of rules
that significantly or uniquely affect tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities or the relationship and distribution of
power between the Federal Government and Native American Tribes.
PHMSA assessed the impact of this rulemaking and has preliminarily
determined that it does not significantly or uniquely affect tribal
communities or Native American Tribal governments as Native American
tribes are excepted from registration requirements as prescribed in
Sec. 107.606 of the HMR. The proposed changes to the HMR as written in
this rulemaking are facially neutral and have broad, national scope;
PHMSA therefore expects this rulemaking not to affect tribal
communities significantly or uniquely, much less impose substantial
compliance costs on Native American Tribal governments or mandate
tribal action. Because PHMSA expects this rulemaking will not adversely
affect the safe transportation of hazardous materials generally, PHMSA
does not expect it will entail disproportionately high adverse risks
for tribal communities. For these reasons, PHMSA preliminarily finds
the funding and consultation requirements of Executive Order 13175 and
DOT Order 5301.1A do not apply.
E. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to review regulations to assess their impact on small entities
unless the agency head certifies that a rulemaking will not have a
significant economic impact on a substantial number of small entities,
including small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations under 50,000. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where possible to
do so and still meet the objectives of applicable regulatory statutes.
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') \19\ requires agencies to establish procedures and
policies to promote compliance with the Regulatory Flexibility Act and
to ``thoroughly review draft rules to assess and take appropriate
account of the potential impact'' of the rules on small businesses,
governmental jurisdictions, and small organizations. The DOT posts its
implementing guidance on a dedicated web page.\20\
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\19\ 68 FR 7990 (Feb. 19, 2003).
\20\ DOT, ``Rulemaking Requirements Related to Small Entities.''
<a href="https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities">https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities</a> (last accessed June 17, 2021).
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This rulemaking has been developed in accordance with Executive
Order 13272 and with DOT's procedures and policies to promote
compliance with the Regulatory Flexibility Act to ensure that potential
impacts of draft rules on small entities are properly considered. PHMSA
has developed an initial regulatory flexibility analysis (IRFA), which
is included as part of the PRIA in the docket for this rulemaking. As
detailed in the IRFA, the rulemaking could be said to have a somewhat
disproportionate economic impact on small businesses because the
percentage increase of the registration fee will be larger than for
large businesses. The increase in fee for small businesses is minor
with a $125 increase from $250 to $375, but not insignificant whereas
the fee increase for large businesses will be a $425 increase from
$2,575 to $3,000. However, PHMSA is bound by statute to limit the
maximum fee charged to any entity up to $3,000. PHMSA solicits comment
on the anticipated economic impacts to small businesses and the IRFA.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et
seq.) requires agencies to assess the effects of federal regulatory
actions on state, local, and Tribal governments, and the private
sector. For any NPRM or final rule that includes a federal mandate that
may result in the expenditure by state, local, and Tribal governments,
or by the private sector of $100 million or more in 1996 dollars in any
given year, the agency must prepare, amongst other things, a written
statement that qualitatively and quantitatively assesses the costs and
benefits of the federal mandate.
As explained in the PRIA, this rulemaking is neither expected to
impose unfunded mandates under the UMRA nor expected to result in costs
of $100 million or more in 1996 dollars to either state, local, or
Tribal governments, or to the private sector, in any one year. A copy
of the PRIA is available for review in the rulemaking docket.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et
seq.) no person is required to respond to any information collection
unless it has been approved by OMB and displays a valid OMB control
number. Pursuant to 44 U.S.C. 3506(c)(2)(B) and Section 1320.8(d) of 5
CFR requires that PHMSA provide interested members of the public and
affected agencies an opportunity to comment on information and
recordkeeping requests. PHMSA has analyzed this NPRM in accordance with
the PRA which requires federal agencies to minimize paperwork burden
imposed on the American public by ensuring maximum utility and quality
of Federal information, ensuring the use of information technology to
improve government performance, and improving the Federal Government's
accountability for managing information collection activities. PHMSA
has analyzed this NPRM in accordance with the PRA and there are no new
or
[[Page 45812]]
modified information collection requirements in this rulemaking.
H. Draft Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4335),\21\ requires Federal agencies to consider the
environmental impacts of their actions in the decision-making process.
The purpose and function of NEPA is satisfied if federal agencies have
considered relevant environmental information, and the public has been
informed regarding the decision-making process. Agencies must prepare
an environmental assessment (EA) for a proposed action that is not
likely to have significant effects or when significance is unknown and
prepare a Finding of No Significant Impact (FONSI), if based on the EA,
the agency determines not to prepare an Environmental Impact Study
(EIS) because the proposed action will not have significant effects. In
accordance with these requirements, an agency's EA must discuss: (1)
the need for the action; (2) the alternatives considered; (3) the
environmental impacts of the proposed action and alternatives; and (4)
a listing of the agencies and persons consulted before providing
evidence for determining a FONSI. The draft EA and FONSI for the
proposed action in this rulemaking are as follows:
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\21\ Also, at 40 CFR parts 1501 to 1508.
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1. Need for the Action
The Bipartisan Infrastructure Law (BIL) authorized the Secretary to
expend $46,825,000 from emergency preparedness funds to carry out the
grants program for fiscal years 2022 through 2026. As such, the BIL
increased the authorized funding level by $18,507,000. To achieve full
funding of the grants program at the increased authorization amounts,
PHMSA will need to adjust the registration fees for the national
hazardous materials transportation registration and fee program.
2. Alternatives Considered
No Action Alternative
Under the no action alternative, PHMSA would maintain the current
registration and fee requirements.
Proposed Action Alternative--Increase Registration Fees
Under this alternative, PHMSA would increase the registration fee
applied to small and large businesses based on inflation. A concise
summary of the proposed changes is as follows:
<bullet> Increase fees for small businesses and not-for-profit
organizations by $125--which will increase from $250 to $375; and
<bullet> Increase fees for large businesses by $425--which will
increase from $2,575 to $3,000.
3. Environmental Impacts of Proposed Action and Alternatives
No Action Alternative
PHMSA expects the no action alternative to have no new impact on
the environment as the proposed adjustment of registration fees would
provide more funding to respond to and mitigate emergency responses.
Proposed Action Alternative--Increase Registration Fees
PHMSA expects the proposed action alternative to have no impact on
the environment. Additionally, PHMSA notes that increasing registration
fees will provide additional off-site or the increase of outreach
training. However, PHMSA does note the difficulty in quantifying any
environmental impact of increasing the registration fees.
4. Agencies and Persons Consulted
PHMSA coordinated internally with other divisions within PHMSA,
modal partners (e.g., the Federal Motor Carrier Safety Administration,
the Federal Railroad Association, and the United States Coast Guard),
and stakeholders to develop this proposed rulemaking.
5. Environmental Justice
Executive Orders 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations''),\22\
13985 (``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government''),\23\ 13990 (``Protecting
Public Health and the Environment and Restoring Science To Tackle the
Climate Crisis''),\24\ 14008 (``Tackling the Climate Crisis at Home and
Abroad''),\25\ and DOT Order 5610.2C (``Department of Transportation
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations'') require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects of their programs, policies, and activities on minority
populations, low-income populations, and other underserved and
disadvantaged communities.
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\22\ 59 FR 7629 (Feb. 11, 1994).
\23\ 86 FR 7009 (Jan. 20, 2021).
\24\ 86 FR 7037 (Jan. 20, 2021).
\25\ 86 FR 7619 (Feb. 1, 2021).
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PHMSA has evaluated this proposed rule under the above Executive
Orders and DOT Order 5610.2C and determined that it would not cause
disproportionately high and adverse human health and environmental
effects on minority, low-income, underserved, and other disadvantaged
populations, and communities. The rulemaking is neither directed toward
a particular population, region, or community, nor is it expected to
adversely impact any population, region, or community. Insofar as the
rulemaking would not adversely affect the safe transportation of
hazardous materials generally, the proposed revisions would not entail
disproportionately high adverse risks for minority populations, low-
income populations, or other underserved and other disadvantaged
communities.
6. Proposed FONSI
As discussed in the draft EA above, the purpose of the rule is to
adjust fees upward to provide additional funds for the statutorily
authorized limits from emergency planning funds that support PHMSA's
grants program. PHMSA proposes to find that this proposed action will
have no significant impact on the environment. Although the fees
collected provide funding for grants that are issued to states,
territories, and Native American Tribes to assist in development,
improvement, and carrying out emergency plans within the National
Response System and the Emergency Planning and Community Right-To-Know
Act of 1986, PHMSA preliminarily concludes that this action will not
have a direct significant impact on the environment. The grant program
is designed to allow grantees the flexibility to implement training and
planning programs that address differing needs for each location based
on demographics, emergency response capabilities, commodity flow
studies, and hazard analysis. PHMSA welcomes public comments about the
safety and environmental risks or benefits that could result from this
proposed rule as well as possible alternatives and their environmental
impacts.
I. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to inform any amendments to the hazardous materials program
procedures and the HMR considered in this rulemaking. DOT posts these
comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in
[[Page 45813]]
the system of records notice (DOT/ALL-14 FDMS). DOT's complete Privacy
Act Statement is in the Federal Register,\26\ or on DOT's website at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
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\26\ 65 FR 19477 (Apr. 11, 2000).
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List of Subjects in 49 CFR Part 107
Hazardous Materials Program Procedures.
In consideration of the forgoing, PHMSA proposes to amend 49 CFR
chapter I as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM AND PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section
4; Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 31001;
Pub. L. 114-74 Section 701 (28 U.S.C. 2461 note); 49 CFR 1.81 and
1.97; 33 U.S.C. 1321.
0
2. In Sec. 107.612, revise paragraph (b) to read as follows:
Sec. 107.612 Amount of fee.
* * * * *
(b) Each person subject to the requirements of this subpart must
pay the processing fee specified in paragraph (c) of this section and
the annual registration fee set forth in the following table:
Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
Other than small
Not-for-profit business or not-
Registration year Small business organization for-profit
organization
----------------------------------------------------------------------------------------------------------------
2024-2025 and later.......................................... $375 $375 $3,000
2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019- 250 250 2,575
2020, 2020-2021, 2021-2022, 2022-2023, 2023-2024............
2013-2014.................................................... 125 125 1,300
2012-2013, 2011-2012, 2010-2011.............................. 250 250 2,575
2009-2010, 2008-2009, 2007-2008, 2006-2007................... 250 250 975
2005-2006, 2004-2005, 2003-2004.............................. 125 125 275
2002-2003, 2001-2002, 2000-2001.............................. 275 (\1\) 1975
1999-2000 and earlier........................................ 250 250 250
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\1\ Fee appropriate for small or other than small business.
* * * * *
0
3. In Sec. 107.616, revise paragraphs (a) and (b) to read as follows:
Sec. 107.616 Payment procedures.
(a) Each person subject to the requirements of this subpart must
submit the registration statement and payment electronically in full
through the Department's e-Commerce internet site. Access to this
service is provided at <a href="https://www.phmsa.dot.gov/hazmat/registration">https://www.phmsa.dot.gov/hazmat/registration</a>. A
registrant required to file an amended registration statement under
Sec. 107.608(c) of this subpart must submit it through the same
internet site.
(b) Payment must be made by completing an authorization for payment
by credit card or other electronic means of payment acceptable to the
U.S. Department of Transportation as part of an internet registration
as provided in paragraph (a) of this section.
* * * * *
0
4. In Sec. 107.620, revise paragraphs (b), (c), and (d) to read as
follows:
Sec. 107.620 Recordkeeping requirements.
* * * * *
(b) Each motor carrier subject to the requirements of this subpart
must carry a copy of its current Certificate of Registration issued by
PHMSA or another document bearing the registration number identified as
the ``U.S. DOT Hazmat Reg. No.'' onboard each truck and truck tractor
(not including trailers and semi-trailers) used to transport hazardous
materials subject to the requirements of this subpart. The Certificate
of Registration or document bearing the registration number may be
carried in electronic or paper form and must be made available, upon
request, to authorized personnel or DOT enforcement personnel.
(c) In addition to the requirements of paragraph (a) of this
section, each person who transports by vessel a hazardous material
subject to the requirements of this subpart must carry onboard the
vessel a copy of its current Certificate of Registration or another
document bearing the current registration number identified as the
``U.S. DOT Hazmat Reg. No.'' The Certificate of Registration or
document bearing the registration number may be carried in electronic
or paper form and must be made available, upon request, to authorized
personnel or DOT enforcement personnel.
(d) Each person subject to this subpart must furnish its
Certificate of Registration (or a copy thereof) and all other records
and information pertaining to the information contained in the
registration statement to authorized personnel or DOT enforcement
personnel upon request. The Certificate of Registration and all other
records and information may be furnished in electronic or paper form.
* * * * *
Issued in Washington, DC, on May 20, 2024, 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. 2024-11391 Filed 5-23-24; 8:45 am]
BILLING CODE 4910-60-P
</pre></body>
</html>Indexed from Federal Register on May 24, 2024.
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