Proposed rulemaking: Hazardous materials transportation

DEPARTMENT OF TRANSPORTATION (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA)

Notice of Proposed Rulemaking (NPRM).

CFR Part: "49 CFR Part 107"
RIN Number: "RIN 2137-AE35"
Citation: "73 FR 24519"
Document Number: "Docket No. PHMSA-2008-0010 (HM-208G)"
Page Number: "24519"
"Proposed Rules"

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

   DATES: Submit comments by July 14, 2008.

   ADDRESSES: You may submit comments identified by DOT DMS Docket Number PHMSA-2008-0010 by any of the following methods:

    * Fax: 202-493-2251.

    * Mail: Dockets Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,Washington, DC 20590-0001.

    * Hand Delivery: U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    * Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

   Instructions: Include the agency name and docket number PHMSA-2008-0010 (HM-208G) or Regulatory Identification Number (RIN) RIN 2137-AE35 for this rulemaking at the beginning of your comment. Note that all comments received will be posted, without change, to http://www.regulations.gov including any personal information provided. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard.

   Docket: You may review the public docket through the Internet at http://www.regulations.gov or in person at the Dockets Operations office at the above address (See ADDRESSES).

   FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of Hazardous Materials Planning and Analysis, PHMSA, (202) 366-4484, or Ms. Deborah Boothe, Office of Hazardous Materials Standards, PHMSA, (202) 366-8553.

   SUPPLEMENTARY INFORMATION: Since 1992, the Pipeline and Hazardous Materials Safety Administration (PHMSA) has conducted a national registration program under the mandate in 49 U.S.C. 5108 for persons who offer for transportation or transport certain hazardous materials in intrastate, interstate, or foreign commerce. The purposes of the registration program are to gather information about the transportation of hazardous materials, and fund the Hazardous Materials and Emergency Preparedness (HMEP) grants program. The HMEP grants program supports hazardous materials emergency response planning and training activities by States, local governments, and Indian tribes. See 49 U.S.C. 5108(b), 5116. PHMSA has discretion to require additional persons to register, beyond those offerors and transporters of the categories and quantities of hazardous materials listed in 49 U.S.C. 5108(a)(1), and to set the annual registration fee between the statutorily-mandated minimum and maximum amounts. See 49 U.S.C. 5108(a)(2), 5108(g)(2)(A).

   To meet Congressionally-authorized funding of $14.3 million for the HMEP grants program, in 2000, we expanded the base of registrants and adopted a two-tier fee schedule under which the registration fee was set at $275 for persons qualifying as small businesses under Small Business Administration (SBA) criteria, and $1,975 for other persons (plus a $25 processing fee in all cases). (69 FR 7297) Due to a surplus, in 2003, we temporarily adjusted the registration fee to $125 (plus a $25 processing fee) for small businesses and not-for-profit organizations and $275 (plus a $25 processing fee) for all other registrants. (68 FR 1342) In 2006, the fees increased to $250 (plus a $25 processing fee) for small businesses and not-for-profit organizations and $975 (plus a $25 processing fee) for all other registrants.

   Congress reauthorized the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) in 2005 through the "Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005" (Title VII of the Safe, Accountable, Flexible, Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1144, August 10, 2005). The Act makes available approximately $28,000,000 for the HMEP grants program and lowers the maximum registration fee from $5,000 to $3,000. Consistent with SAFETEA-LU, and the Consolidated Appropriations Act of 2008 (Pub. L. 110-16) which sets an obligation limitation of $28,318,000 for expenses from the HMEP fund, the Administration's Fiscal Year 2008 budget requested and was granted $28,000,000 in support of HMEP activity.

   To ensure full funding of the HMEP grants program, PHMSA is proposing an increase in registration fees to fund the program at the $28.3 million level. This proposed fee increase will be in effect for the 2009-2010 registration year. We are proposing to delay the proposed fee increase until the 2009-2010 registration year to avoid accumulating a large surplus in the HMEP grants program account. For those registrants not qualifying as a small business or not-for-profit organization, we propose to increase the registration fee from $975 (plus a $25 administrative fee) to $2,475 (plus a $25 administrative fee) for registration year 2009-2010 and following years.

II. HMEP Grants Program

A. Purpose and Achievements of the HMEP Grants Program

   The HMEP grants program, as mandated by 49 U.S.C. 5116, provides Federal financial and technical assistance to States and Indian tribes to "develop, improve, and carry out emergency plans" within the National Response System and the Emergency Planning and Community Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 et seq. The grants are used to develop, improve, and implement emergency plans; to train public sector hazardous materials emergency response employees to respond to accidents and incidents involving hazardous materials; to determine flow patterns of hazardous materials within a State and between States; and to determine the need within a State for regional hazardous materials emergency response teams.

   The HMEP grants program encourages the growth of the hazardous materials planning and training programs of State, local, and tribal governments by limiting the Federal funding to 80 percent of the cost a State or Indian tribe incurs to carry out the activity for which the grant is made. See 49 U.S.C. 5116(e). HMEP grants supplement the amount already being provided by the State or Indian tribe. By accepting an HMEP grant, the State or tribe makes a commitment to maintain its previous level of support. See 49 U.S.C. 5116(a)(2)(A) and 5116(b)(2)(A).

   Since 1993, PHMSA has awarded all States and territories and 45 Native American tribes planning and training grants totaling $125 million. These grants helped to:

    * Train 2,103,000 hazardous materials responders;

    * Conduct 8,617 commodity flow studies;

    * Write or update more than 50,983 emergency plans;

    * Conduct 11,773 emergency response exercises; and

    * Assist 22,288 local emergency planning committees (LEPCs).

   Since the beginning of the program, HMEP program funds have been used to support the following related activities in the total amounts indicated:

    * $3.6 million for the development and periodic updating of a national curriculum used to train public sector emergency response and preparedness teams. The curriculum guidelines, developed by a committee of Federal, State, and local experts, include criteria for establishing training programs for emergency responders at five progressively more skilled levels: (1) First responder awareness, (2) first responder operations, (3) hazardous materials technician, (4) hazardous materials specialist, and (5) on-scene commander.

    * $2.8 million to monitor public sector emergency response planning and training for hazardous materials incidents, and to provide technical assistance to State or Indian tribe emergency response training and planning for hazardous materials incidents.

    * $6.5 million for periodic updating and distribution of the North American Emergency Response Guidebook. This guidebook provides immediate information on initial response to hazardous materials incidents, and is distributed free of charge to the response community.

    * $2.8 million for the International Association of Fire Fighters (IAFF) to train instructors to conduct hazardous materials response training programs.

B. Increased Funding of the HMEP Grants Program

   An estimated 800,000 shipments of hazardous materials make their way through the national transportation system each day. It is impossible to predict when and where a hazardous materials incident may occur or what the nature of the incident may be. This potential threat requires state and local agencies to develop emergency plans and train emergency responders on the broadest possible scale.

   The HMEP training grants are essential for providing adequate training of persons throughout the nation who are responsible for responding to emergencies involving the release of hazardous materials. There are over 2 million emergency responders requiring initial training or periodic recertification training, including 250,000 paid firefighters, 850,000 volunteer firefighters, 725,000 law enforcement officers, and 500,000 emergency medical services (EMS) providers. Due to the high turnover rates of emergency response personnel, there is a continuing need to train a considerable number of recently recruited responders at the most basic level.

   In addition, training at more advanced levels is essential to ensure emergency response personnel are capable of effectively and safely responding to serious releases of hazardous materials. The availability of increased funding for the HMEP grants program will encourage State, tribal, and local agencies to provide more advanced training.

   The increased funding for HMEP grants will enable PHMSA to help meet previously unmet needs of State, local and tribal governments, and public and private trainers by providing for the following activities authorized by law:

    * $21,800,000 for training and planning grants, an increase of $9 million;

    * A new $4,000,000 grant program for non-profit hazmat employee organizations to train hazmat instructors who will train hazmat employees;

    * $1,000,000 for grants to support certain national organizations to train instructors to conduct hazardous materials response training programs, an increase of $750,000;

    * $625,000 for revising, publishing, and distributing the North American Emergency Response Guidebook, an increase of $125,000;

    * $200,000 for continuing development of a national training curriculum; and

    * $150,000 for monitoring and technical assistance.

III. Summary of Proposal To Increase HMEP Funding

   A registration fee system should: (1) Be simple, straightforward, and easily implemented and enforced; (2) employ an equity factor reflecting the differences in level of risk to the public and the financial impact associated with the business activities of large and small businesses; and (3) ensure adequate funding for the HMEP grants program. Under Federal hazmat law, we have the discretion to increase registration fees for both small and large businesses. We considered several alternatives for increasing the funds available for the HMEP grants program. One option was to increase the fee for all businesses offering for transportation or transporting the covered hazardous materials. Another option was to maintain the fee for small businesses and not-for-profit organizations while adjusting the fee for larger businesses.

   Due to a surplus, in 2003, we temporarily adjusted the registration fee to $125 (plus a $25 processing fee) for small businesses and not-for-profit organizations and $275 (plus a $25 processing fee) for all other registrants. (68 FR 1342) This reduction has reduced the current surplus to approximately $14 million at the end of FY 2007.

   To achieve the statutorily mandated goal of funding the HMEP grants program activities at approximately $28,000,000 and avoid a surplus in the HMEP grants account, we are proposing to delay increasing the registration fees by leaving registration fees for persons other than small businesses at the current level of $975 (plus $25 processing fee) for registration year 2008-2009 and raising the fees to $2,475 (plus $25 processing fee) for registration year 2009-2010 and following.

   We believe adjusting the fee solely for larger, for-profit businesses is the best approach to meet the objectives listed above. Although there are exceptions, small businesses and not-for-profit organizations generally offer for transportation or transport fewer and smaller hazardous materials shipments as compared to larger companies. Raising the registration fee only for other-than-small businesses rather than for all businesses correlates the fee structure to the level of risk associated with shipments offered for transportation and transported by larger companies.

   Moreover, increasing the registration fees only for other-than-small businesses will affect significantly fewer entities and will affect entities that can more easily absorb the increase.

Loading