SUPPLEMENTARY INFORMATION:

I. Background

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is considering an adjustment to our statutorily mandated registration and fee assessment program for persons who offer for transportation or transport certain categories and quantities of hazardous materials. PHMSA conducts a national hazardous materials registration program under the mandate in 49 U.S.C. 5108 for a person who offers ^[1] for transportation ( i.e., shippers) or transports certain hazardous materials in intrastate, interstate, or foreign commerce. The registration program implements the mandate for persons to file a registration statement with the Secretary of Transportation—as delegated to PHMSA—and collects registration and processing fees from persons required to file a registration statement (hereafter referred to as “registrants”) to fund the Emergency Preparedness (EP) grants. EP grants support hazardous materials emergency response planning and training activities by states, local governments, and Native American tribes. EP grants also fund nonprofit organizations to provide “train-the-trainer” programs for hazardous materials emergency response training and hazardous materials employee training. Additionally, EP grants support the development of the Emergency Response Guidebook (ERG) that assists emergency responders in determining appropriate response measures and provides funds for grantee monitoring and technical assistance. Congress recognized in the Infrastructure Investment and Jobs Act of 2021 ^[2] (IIJA) (as evidenced by increased authorization levels for the EP Grant Program), and as congressional testimony was reinforced in the aftermath of the 2023 Norfolk Southern train derailment in East Palestine, Ohio, there is an increasing need for Federal support for first responders, particularly responders to hazardous materials related incidents, such as are supported through the EP grants.

To raise additional revenue to meet the increasing needs for the EP Grant Program, 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. See49 U.S.C. 5108(b), 5116, and 5128(b). PHMSA may currently set an annual registration fee between a minimum of $250 and maximum of $3,000. In the HM-208J Advanced Noticed of Proposed Rulemaking (ANPRM),^[3] PHMSA presented a fee scenario table and options to solicit feedback from stakeholders on potential methods and any alternative methods to achieve the increased funding. PHMSA presented nine options for consideration, grouped between a scenario where the maximum fee remains $3,000 per year, and an alternative scenario where Congress increases the maximum fee. The options included:

If registration fees remain at a maximum $3,000 per year, PHMSA is considering the following options for comment:

1. Keep the existing registration requirements (see 49 CFR 107.601) and raise the registration fee for large businesses from $2,575 to $3,000.

2. Keep the existing registration requirements and apply a nominal fee ( e.g., $25) for each facility or geographic location from which a registered person ( i.e., a company) offers for transportation, or transports, certain hazardous materials. ( printed page 34228)

3. Modify assignment of the registration fee and/or amount based on the commensurate hazard posed ( e.g., shipping Packing Group I materials vs. Packing Group III materials) ^[4] or risk profile ( e.g., frequent vs. infrequent shipments).

4. Expand the registration requirements. For example, certain hazardous materials are not subject to placarding when shipped domestically. Therefore, a person who offers for transportation, or transports, these materials is generally exempt from registration, but these requirements could be expanded with appropriate risk-based justifications.

5. Expand the registration fee requirements to include certain persons who acquire approvals or special permits from PHMSA that otherwise are not subject to registration, but which should be based on a public risk-based justification.

If Congress allows an increase in the maximum fee, PHMSA is considering the following options for comment:

1. Maintain the current maximum registration fees and create an upper tier of a higher fee for a certain category of very large businesses. If this approach is preferred, how should PHMSA define a “very large business?” Specifically, what risk factors should go into determining a very large business classification to better account for market-based risks to the public as well as equity factors between applicants.

2. Change the registration requirements to reduce the overall number of registrants.

3. Keep the existing registration requirements and raise the registration fee for large businesses from $2,575 to a dollar value below the Congressionally authorized maximum fee ( e.g., if the maximum allowed were increased from $3,000 to $5,000).

4. Raise fees for specific business types, classes of material, or commodities ( e.g., poisonous by inhalation material), which are considered extremely high risk.

Once the comment period concluded for the ANPRM, PHMSA received seven sets of comments from the regulated community—which provided some insight on how to adjust the mandated registration and fee assessment program. Some ideas expressed within the comments PHMSA received were:

1. Maintaining a two-tiered fee structure and raising HAZMAT registration fees in a manner that will not disproportionately impact small businesses.

2. Endorsing the current two-tiered fee system based on the level of commercial activity assigned to business entities by the Small Business Administration (SBA) and opposing broadening the universe of registrants beyond shippers and carriers of placarded loads.

3. Raising the $3,000 per registrant fee cap.

4. Supporting the current two-tiered fee structure as well established and capable of generating the additional funds authorized in the IIJA, minimizing complexity, and providing clear identification of those who are required to pay the appropriate fees.

5. Opposing additional criteria, revising the defining criteria for small or non-small businesses, or adding additional types of businesses that would need to register.

Due to the limited number of comments received, PHMSA is holding this public meeting in hopes of garnering more substantive feedback and information on the most appropriate and equitable manner to adjust the registration and fee assessment program to meet the authorized increase set forth in the IIJA.

II. Meeting Agenda

At this meeting, PHMSA will address the following topics:

1. Data points PHMSA has garnered from an independent working group.

2. Establishing a new registration group ( e.g., packaging manufacturers) and potentially raising registration fees on businesses other than small businesses based on risk-based transport of hazardous materials.

3. Open floor—any items not covered in the ANPRM, or new suggestions mentioned by commenters to the ANPRM.

III. Public Participation

The meeting will be open to the public; however, any member of the public who wishes to attend must RSVP in advance using the following: https://usdot.zoomgov.com/​meeting/​register/​vJItde2gqzgtGcv6ewzeLw34nzwwtO_​IY68.

PHMSA is committed to providing equal access for all citizens and ensuring that information is available in appropriate alternative formats to meet the requirements of persons who have a disability. If you require an alternative version of files provided or alternative accommodations, please contact PHMSA-Accessibility@dot.gov no later than June 21, 2023.