Hazardous Materials Transportation; Registration and Fee Assessment Program

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 107

[Docket No. HM-208A, Amdt. No. 107-31]

RIN 2137-AC50

Hazardous Materials Transportation; Registration and Fee

Assessment Program

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: In July 1992, RSPA published a final rule establishing a

national registration and fee assessment program for persons offering

for transportation or transporting certain categories and quantities of

hazardous materials in intrastate, interstate, and foreign commerce.

The fees collected under the registration program are to fund a grant

program to enhance State, Indian tribal, and local hazardous materials

emergency preparedness and response activities. This final rule adopts

certain changes to the current registration program effective July 1,

1994, the beginning of the next registration year. The changes delay

the requirement for foreign offerors to register and require a merchant

vessel carrier to maintain the Certificate of Registration on board

each vessel carrying hazardous materials subject to the registration

requirements or to annotate its registration number on any document

readily available to enforcement personnel.

EFFECTIVE DATE: July 1, 1994.

FOR FURTHER INFORMATION CONTACT: Joseph S. Nalevanko, Office of

Hazardous Materials Planning and Analysis, (202) 366-4484, or Beth

Romo, Office of Hazardous Materials Standards, (202) 366-4488, RSPA,

Department of Transportation, 400 Seventh Street S.W., Washington, DC

20590-0001.

SUPPLEMENTARY INFORMATION:

1. Background

On July 9, 1992, RSPA published a final rule under Docket HM-208

(57 FR 30620), establishing a national registration program, as

mandated by Congress in the 1990 amendments to the Hazardous Materials

Transportation Act (HMTA), 49 App. U.S.C. 1801 et seq., for persons

engaged in the offering for transportation or transportation of 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 an annual fee of $250 to fund a nationwide

emergency response training and planning grant program for States,

local governments, and Indian tribes, and a $50 administrative fee to

offset DOT processing costs. The fee of $250 is the minimum amount

permitted to be collected for purposes of funding the emergency

response preparedness and planning grant program.

Under the authority of the HMTA, RSPA has developed and implemented

a reimbursable emergency preparedness grant program. The regulations

establishing this program were issued in a final rule entitled ``Public

Sector Training and Planning Grants'' under Docket HM-209 on September

17, 1992 (57 FR 43062). The purpose of the grant program is to provide

funds, technical assistance, and support to States, Indian tribes, and

political subdivisions to develop, implement, and improve planning and

training programs for emergency responders in the public sector. The

funding for the grant program comes from the fees received from RSPA's

registration program. Approximately 26,000 persons have registered with

RSPA for the current registration year, substantially fewer in number

than originally anticipated. RSPA is concerned that many persons who

are required to register have not. Therefore, on April 1, 1994, RSPA

proposed two compliance-related requirements in the NPRM to enhance

nationwide compliance.

RSPA proposed that each person who offers or transports a hazardous

material for which registration is required may do so only if both the

transporter and the offeror (if required) are registered. They would be

required, on an annual basis, to obtain each other's registration

number or a copy of each other's current Certificate of Registration.

Secondly, RSPA decided to further enhance the enforcement of the

registration program as it applies to foreign or domestic merchant

vessel carriers. Accordingly, RSPA proposed to require that each

merchant vessel carrier carry a copy of its current Certificate of

Registration issued by RSPA or another document bearing the

registration number identified as the ``U.S. DOT Hazmat Reg. No.'' on

board each merchant vessel carrying a hazardous material subject to the

registration requirements.

As discussed in the NPRM, legislation is being considered which

would grant DOT the discretionary authority to waive the registration

or fee requirement for any person domiciled outside the United States,

if that person's country does not impose registration or fee

requirements on U.S. persons offering hazardous materials to that

country (see, for example, HR 2178 which passed on November 21, 1993).

Pending the outcome of these legislative initiatives, RSPA proposed to

further extend the delay in application of the registration program to

foreign offerors from July 1, 1994 until July 1, 1996.

II. Summary of Comments

Delay in Registering Foreign Offerors

Commenters overwhelmingly supported RSPA's proposed two-year delay

in requiring registration of foreign offerors. Many commenters

recommended that RSPA not implement foreign offeror registration at all

because of the possibility of reciprocal action taken against the

United States. A Canadian chemical manufacturers' association noted

that shipments to Canada are exempt from Canadian registration

requirements and strongly recommended that Canadian offerors be

afforded reciprocal treatment when shipping to the U.S. Therefore, RSPA

is extending, as proposed, the exemption for foreign offerors from

registration and fee requirements until July 1, 1996.

Verification of Registration on Board Vessels

Several commenters questioned the need for the proposed requirement

for vessel carriers to have a copy of a valid registration certificate

or other document displaying a valid registration number on board each

vessel. The International Chamber of Shipping stated that the proposed

requirement would add to the paperwork burden on the ship and increase

the workload of the ship's command. This commenter further noted that

RSPA already has access to a ship's registration numbers at the

operator's office or at the office of the operator's agent. The

Steamship Operators Intermodal Committee claimed the total population

of vessel owners, operators, and their agents is relatively small and

readily identifiable. The U.S. Atlantic and Gulf/Australia New Zealand

Conference added that vessels do not present the problems of vast

numbers and mobility presented by motor vehicles.

Adoption of this requirement could avert potentially significant

and costly delays for vessels entering and clearing U.S. port areas.

The marginal cost associated with requiring a transporter's

registration number on board a vessel is clearly outweighed by more

significant costs resulting from time-consuming inspections by Coast

Guard personnel. A readily available copy of the certificate of

registration or other document indicating a valid registration number

would eliminate any need for communication between the master of the

vessel and the vessel owner/lessor (who could be domiciled in a foreign

country) and subsequent inquiries to an agent representing the vessel.

Therefore, RSPA is adopting the proposed requirement for a merchant

vessel carrier to maintain the Certificate of Registration or another

document indicating the valid registration number on board each vessel

carrying hazardous material subject to the registration requirements

readily available to enforcement personnel. However, because of the

brief time period between publication of this final rule and its

effective date, RSPA is providing a delay until January 1, 1995, to

comply with this requirement.

Other Issues Addressed By Commenters

Most commenters opposed RSPA's proposal that offerors and

transporters check each other's registration status. Responsibility for

enforcing registration requirements, logistical problems,

administrative burdens, and increased costs were the predominant

reasons offered by commenters opposing this proposal.

Commenters overwhelmingly believed that federal and state agencies

should be responsible for enforcing the regulations, not industry. A

related concern expressed by commenters is that a person otherwise in

compliance with the regulations could be in violation of the

registration requirements by unknowingly doing business with a customer

who falsely claimed to be registered. Furthermore, commenters feared

that persons who are in compliance with the registration requirements

and refuse to do business with unregistered customers may lose their

customers and revenue to less scrupulous competitors.

Administrative burdens were identified as the creation of new

databases, maintenance of additional files, and preparation of

correspondence. Increased costs would involve additional function-

specific training of personnel to determine if a shipment is subject to

registration, higher clerical expenses for correspondence and

recordkeeping, and delays or cancellations caused by a last-minute

exchange of registration information.

According to many commenters, a ``logistical nightmare'' would

result from this proposed requirement, especially when intermodal

transportation is involved. Other complicated situations cited by

commenters involve selection of a transporter by a customer, customer-

provided transport vehicles, interlining carriers, and infrequent or

irregular shipments.

Finally, numerous commenters requested a delay in the effective

date of this requirement, if adopted, beyond the beginning of the 1994-

95 registration year on July 1, 1994.

RSPA believes that more time is needed to explore thoroughly the

issues and concerns raised by commenters to this proposal; therefore,

the proposal to require verification of registration by a transporter

or offeror is not adopted in this final rule. RSPA anticipates

providing a more detailed evaluation of comments and alternatives to

this proposed requirement, clarifying various provisions of the

registration program and responding to other miscellaneous suggestions

provided by commenters in a rulemaking action in the near future.

III. Summary of Regulatory Changes by Section

Part 107

Section 107.601 Paragraph (e) is revised as proposed to clarify

the term ``shipment'' as it pertains to the scope of the registration

program.

Section 107.606 This section provides exceptions from the

registration requirements. In paragraph (f), foreign offerors,

including foreign subsidiaries of U.S. corporations, are excepted from

all registration requirements until July 1, 1996.

Section 107.608 Paragraph (a) is amended as proposed to remove

outdated provisions referring to the first registration year's

compliance dates.

Section 107.620 Paragraph (c) is redesignated as paragraph (d). A

new paragraph (c) is added to require a merchant vessel carrier to

maintain the Certificate of Registration on board each vessel carrying

hazardous materials subject to the registration requirements or to

annotate its registration number on any document readily available to

enforcement personnel. RSPA is providing a delay in compliance with

this requirement until January 1, 1995.

IV. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866 and therefore, was not

reviewed by the Office of Management and Budget. The rule is not

considered a significant rule under the Regulatory Policies and

Procedures of the Department of Transportation (44 FR 11034). A

regulatory evaluation is available for review in the Docket.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism''). 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.

C. Regulatory Flexibility Act

I certify that this final rule will not have a significant economic

impact on a substantial number of small entities. This final rule

maintains the minimum fee requirement for all shippers and carriers of

hazardous materials who are subject to the registration requirement.

D. Paperwork Reduction Act

Under 49 App. U.S.C. 1805, the information management requirements

of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to

this final 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 amended as

follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

1. The authority citation for part 107 continues to read as

follows:

Authority: 49 App. U.S.C. 1421(c), 1653(d), 1655, 1802, 1804,

1805, 1806, 1808-1811, 1815; 49 CFR 1.45 and 1.53 and App. A of 49

CFR part 1.

2. In Sec. 107.601, the last sentence in paragraph (e) is revised

to read as follows:

Sec. 107.601 Applicability.

* * * * *

(e) * * * For applicability of this subpart, the term ``shipment''

means the offering or loading of a hazardous material at one loading

facility using one transport vehicle, or the transport of that

transport vehicle.

Sec. 107.606 [Amended]

3. In Sec. 107.606, in paragraph (f), at the beginning of the first

sentence, the wording ``Until July 1, 1994,'' is revised to read

``Until July 1, 1996,''.

4. In Sec. 107.608, paragraph (a) is revised to read as follows:

Sec. 107.608 General registration requirements.

(a) Except as provided in Sec. 107.616(d), each person subject to

this subpart must submit a complete and accurate registration statement

on DOT Form F 5800.2 not later than June 30 for each registration year,

or in time to comply with paragraph (b) of this section, whichever is

later.

* * * * *

5. Section 107.620 is amended by redesignating paragraph (c) as

paragraph (d) and adding a new paragraph (c) to read as follows:

Sec. 107.620 Recordkeeping requirements.

* * * * *

(c) In addition to the requirements of paragraph (a) of this

section, after January 1, 1995, each person who transports by vessel a

hazardous material subject to the requirements of this subpart must

carry on board 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.''

* * * * *

Issued in Washington, D.C. on June 21, 1994, under the authority

delegated in 49 CFR part 1.

Ana Sol Gutierrez,

Acting Administrator, Research and Special Programs Administration.

[FR Doc. 94-15518 Filed 6-24-94; 8:45 am]

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