[Federal Register Volume 67, Number 179 (Monday, September 16, 2002)]
[Rules and Regulations]
[Pages 58343-58345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23476]
[[Page 58343]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 107
[Docket No. RSPA-02-13328 (HM-208E)]
RIN 2137-AD74
Hazardous Materials: Miscellaneous Revisions to Registration
Requirements
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: RSPA (we) is amending its regulations concerning registration
of persons who transport or offer for transportation in commerce
certain categories and quantities of hazardous materials. We are
adopting the North American Industry Classification System (NAICS) to
determine whether an entity is a small business, consistent with
actions taken by the Small Business Administration (SBA). We are also
revising the requirements to permit registration over the internet and
to authorize the use of additional credit cards to pay the registration
fee. Other proposals in our December 7, 2000, notice of proposed
rulemaking, to temporarily reduce registration fees and charge not-for-
profit organizations the same registration fee as a small business,
will be addressed in a separate final rule after enactment of the
Department of Transportation appropriations for Fiscal Year 2003, as we
announced in our March 14, 2002, notice of proposed rulemaking in the
Federal Register.
EFFECTIVE DATE: January 6, 2003.
FOR FURTHER INFORMATION CONTACT: Mr. David Donaldson, Office of
Hazardous Materials Planning and Analysis, (202) 366-4484, or Ms.
Deborah Boothe, Office of Hazardous Materials Standards, (202) 366-
8553, Research and Special Programs Administration, U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
I. Background
Since 1992, RSPA has conducted a national registration program of
persons who offer for transportation or transport hazardous materials
in intrastate, interstate, or foreign commerce, under the mandate in 49
U.S.C. 5108. The purposes of the registration program are to (1) gather
information about the transportation of hazardous material and (2) fund
the Hazardous Materials Emergency Preparedness (HMEP) grants program
which supports hazardous material emergency response planning and
training activities by States, local governments, and Indian tribes and
related activities. See sections 5108(b), 5116. The law gives RSPA
discretion to require additional persons to register, beyond those
offerors and transporters of the categories and quantities of hazardous
materials listed in Sec. 5108(a)(1), and to set the annual
registration fee between $250 and $5,000. See sections 5108(a)(2),
5108(g)(2)(A).
Until 2000, only those persons who offer or transport the
categories and quantities of hazardous materials set forth in section
5108(a)(1) were required to register, and the annual registration fee
was set at the minimum level of $250 (plus a processing fee of $50). In
each year through the July 1, 1999-June 30, 2000 registration year, the
total registration fees collected by RSPA amounted to less than one-
half of the total $14.3 million intended by Congress for training and
planning grants and grant-related activities.
In a final rule published in the Federal Register on February 14,
2000, RSPA applied the requirement to register to additional persons,
and we adopted a two-tiered fee under which the registration fee was
set at $275 for a person meeting the Small Business Administration
(SBA) criteria for a small business, and $1,975 for other persons (plus
a $25 processing fee in all cases). 65 FR 7297. However, a much greater
than anticipated number of persons have paid the higher registration
fee applicable to a larger business, and RSPA has collected more than
$21 million each registration year starting with 2000-2001. Because
Section 5108(g)(2)(C) requires RSPA to adjust the registration fee ``to
reflect any unexpended balance'' in the HMEP Fund, on December 7, 2000,
we published a notice of proposed rulemaking (NPRM) under Docket No.
RSPA-00-8439 (HM-208D) proposing to: (1) Temporarily lower registration
fees for all registrants for six registration years; (2) specify that a
not-for-profit organization (regardless of its size) would pay the same
fee as a small business; (3) replace the Standard Industrial
Classification (SIC) code system with the North American Industry
Classification System (NAICS), consistent with SBA actions; and, (4)
allow payment by credit cards not previously authorized.
RSPA has delayed taking final action on the proposals in the
December 7, 2000, NPRM because our budget requests to Congress for FY
2002 and FY 2003 have proposed to fund a portion of RSPA's hazardous
materials safety program from excess registration fees (i.e., those
exceeding the $14.3 million specified to be used for training and
planning grants and grant-related activities). See the status documents
we published in the Federal Register on May 2, 2001 (66 FR 22080), and
March 14, 2002 (67 FR 11456). This proposal was not adopted by Congress
in the FY 2002 DOT appropriations and, as soon as Congress acts on the
FY 2003 budget request, we intend to take appropriate action on the
proposals to temporarily reduce registration fees and charge not-for-
profit organizations the same registration fee as a small business. In
the meantime, however, we consider that it is appropriate to adopt
those proposals that are unrelated to reducing registration fees.
II. Discussion of Comments and Regulatory Changes
RSPA received 19 written comments to the NPRM from emergency
response organizations; industry associations representing a broad
spectrum of businesses that offer or transport hazardous materials; and
individuals engaged in agricultural retailing, petroleum distribution,
farming, convenience store operations, and all modes of transportation.
In this rule, we discuss only the comments unrelated to the fee
reduction proposals in the December 7, 2000, NPRM.
A. SBA Criteria for Definition of a Small Business
At the present time, the ``small business'' criteria used to
determine the amount of the registration fees are found in the Standard
Industrial Classification (SIC) code for the registrant's primary
industry group. These codes were adopted and used by SBA until two
years ago. In our February 14, 2000, final rule, we discussed the
likelihood that SBA would change from SIC codes to the NAICS, and SBA's
estimation that this change should not result in many instances in
which an entity would lose its status as a small business. 65 FR at
7304. After SBA adopted the NAICS in a final rule published on May 15,
2000 (65 FR 30836), we proposed to make a similar change in Sec.
107.612.
Commenters supported this proposal. The Petroleum Marketers
Association of America (PMAA) stated that RSPA should join other
``administrative agencies [that] have begun using NAICS [which] will
promote uniformity throughout the regulations.'' PMAA stated that there
would be ``no detrimental effect on our members in
[[Page 58344]]
changing from SIC system to the NAICS.''
The Agricultural Retailers Association (ARA) ``supports the change
with the proviso that the agency include NAICS information in all
future registration correspondence with the regulated community.'' It
stated that ``there remains a definite lack of knowledge of the current
SIC Code system among ARA's members and the changeover to NAICS will
only further cloud the issue.''
The Petroleum Transportation and Storage Association (PTSA) stated
that;
NAICS is a far more useful guideline to determine business
categories and size because it more accurately reflects modern
economic activity than the SIC code. The highly specialized economic
activity descriptions in NAICS would allow shippers who have
multiple business establishments to more easily calculate the number
of employees or gross receipt thresholds that determine the amount
of the annual registration fee.
Our further review of SIC and NAICS codes confirms our earlier
conclusion that very few entities would lose status as a small
business. Based on that review and the comments received in response to
the NPRM, we are adopting the proposal to use the NAICS for size
standards.
A list of size criteria by NAICS codes is provided on the SBA
Internet site at: http://www.sba.gov/size/sizetable.html.
A list by SIC code with the corresponding NAICS code and size
standard is provided at: http://www.sba.gov/size/SIC2NAICSmain.html.
A search engine for the SIC and NAICS systems is provided by the
SBA at its Internet site at: https://eweb1.sba.gov/naics/dsp_naicssearch2.cfm. Additional information on NAICS, including tables
showing the correspondences between the two numbering systems is
provided at: http://www.census.gov/epcd/www/naics.html. Registrants
unfamiliar with NAICS should find these sites useful in determining the
appropriate code.
B. Registration Over the Internet
Within a few months after issuing the February 14, 2000, final
rule, we realized that we should allow persons to register and pay the
registration fee over the Internet, even though the registration
procedures contained in the regulations do not specifically discuss
that method. We are amending Sec. 107.616 to specifically permit a
person to use the Internet to submit its registration statement and pay
the registration fee with a credit card or by other means of electronic
payment.
C. Additional Credit Cards Authorized
In the NPRM, we proposed to authorize persons to use additional
credit cards (besides Visa and MasterCard) to pay registration fees.
The only commenter on this proposal was the American Trucking
Associations (ATA), which supported the ``expanded payment methods.''
To allow greater flexibility, we are providing in Sec. 107.616(b) that
a person may use any ``credit card or other electronic means of payment
acceptable to the Department.''
III. Rulemaking Analysis 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. Therefore, it was not
reviewed by the Office of Management and Budget (OMB), and a regulatory
assessment was not required for OMB. This rule is not considered
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). Due to minimal economic
impact of this final rule, preparation of a regulatory impact analysis
or regulatory evaluation is not warranted.
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). The
registration requirements do not impair the ability of States, local
governments, or Indian tribes to impose their own fees or registration
or permit requirements on persons who offer or transport hazardous
materials in commerce. RSPA encourages States, local governments, and
Indian tribes to adopt and enforce requirements in the Hazardous
Materials Regulations and the Federal registration requirement, in
order to enhance compliance with a nationally uniform set of
regulations on the transportation of hazardous materials.
The consultation and funding requirements of Executive Order 13132
do not apply because this final rule does not adopt any regulation
that:
(1) 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;
(2) imposes substantial direct compliance costs on State and local
governments; or
(3) preempts state law.
C. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rule does
not have tribal implications, does not impose substantial direct
compliance costs and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities.
In the February 14, 2000, final rule in Docket No. HM-208C, RSPA
certified that that final rule did affect a significant number of small
entities, but that the economic impact on these small entities will not
be significant. 65 FR at 7308-09. This final rule affects the same
small entities that Docket HM-208C did and, therefore, this final rule
affects a significant number of small entities. See 65 FR at 7307
through 7309. However, this final rule addresses editorial and other
minor changes that have no economic impact on small businesses.
Therefore, I certify that this final rule does not have a significant
economic impact on a substantial number of small entities.
E. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more, in the aggregate, to any of the following: State,
local, or Native American tribal governments, or the private sector.
F. Paperwork Reduction Act
Under 49 U.S.C. 5108(i), reporting and recordkeeping requirements
pertaining to the registration rule are specifically excepted from the
information management requirements of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
G. 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
[[Page 58345]]
heading of this document may be used to cross-reference this action
with the Unified Agenda. To distinguish this final rule from the
continuing rulemaking action concerning fee reductions we have created
a new RIN number, 2137-AD74, and Docket No. RSPA-02-13328 (HM-208E) for
this final rule. The fee-reduction related proposals will remain under
RIN 2137-AD53 and Docket No. RSPA-00-8439 (HM-208D).
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 Chapter I is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L.104-
121, 110 Stat. 857; 49 CFR 1.45, 1.53.
Sec. 107.612 Amount of fee.
2. In Sec. 107.612, in paragraph (b)(1), the wording ``standard
industrial classification (SIC)'' is removed and ``North American
Industry Classification System (NAICS)'' is added in its place.
3. In Sec. 107.616, paragraphs (a) and (b) are revised to read as
follows:
Sec. 107.616 Payment procedures.
(a) Except as provided in paragraph (d) of this section, each
person subject to the requirements of this subpart must mail the
registration statement and payment in full to the U.S. Department of
Transportation, Hazardous Materials Registration, P.O. Box 740188,
Atlanta, Georgia 30374-0188, or submit the statement and payment
electronically through the Department's e-Commerce Internet site.
Access to this service is provided at http://hazmat.dot.gov/register.htm. A registrant required to file an amended registration
statement under Sec. 107.608(c) must mail it to the same address or
submit it through the same Internet site.
(b) Payment must be made by certified check, cashier's check,
personal check, or money order in U.S. funds and drawn on a U.S. bank,
payable to the U.S. Department of Transportation and 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.
* * * * *
Issued in Washington, DC on September 10, 2002, under authority
delegated in 49 CFR Part 1.
Ellen G. Engleman,
Administrator.
[FR Doc. 02-23476 Filed 9-13-02; 8:45 am]
BILLING CODE 4910-60-P