2137-0586 Comments (Con)

January 9.208

The Honorable Mary E. Peters

Secretary of Ttampatati~n
UniWd Stales Department of Transportation
1200 New Jarsty Avenue, SE
Washington, DC 20599

Dear Seoretary Peters:
Recrsntfy, I had the opportuntty to Wi with OeQartment of Environmental Quelity
Emergency Rssponse Coordinator for 0ida)Knna. We d
-i
the Notice of

Rubmek'i from the Pipdine Hazardous Materials Sefrvty Adrninktratlon
(PHMSA) fur information collection $divlties dlmbd toward Hazardous
Matetiits Emergency Planning (HMEP) grants authwired under the Hazardous
Materials TranspodationAct. As a result of my visit, I understand that the State
Emergency Response Comrnlrwions, L o d Emergency Planning Comniesions
and the Nationel Assbciotlon of SARA Title Three Program OffickPls are
concamed about the inoreased burden this informath dkcth activity will
h a s on bcalvchnbtens around the country. I ~hma
these cancerno d would
like further infonation from PHMSA to clarffy the purpose of thk additional
activity.

Certainly, there should be accountabiUt)cfor spending of fadera1gnnt funde. 1
understand that the HMEP program produces en annual report which fndudss
the number of responders t r a i d . the training courses Mered,Ihe number of
LEPCs assisted, the number of exercises completed and the number of local
emergency plans updated aver the preuiow) grant cycle. In addition, an audit of
the HMEP program was conducted by GAO GAOIRCEDQO-180 and they
found a competent and produolive program that w$meeting #s statufoty
objwtbs. It would appear that the informartion ourtently col
by PHMSA is
adequate to account for the program and cwmmunicste its gffestiwmem.

-

-

The informationcollBction nutirxs praposa to impose a very detailed ssseasment
at axpenditwsli of WEP fume. PHMSA htrs indIcaW that each grantee, stele
or trlbe, will spnd approximally 80 hours e l w r i n g the proposed q ~ ~ o
Since the information must come from LEPCo, R is mtim9ted that 1volunteers will need ta spend almost a wsek enmerlng questions about HMEP

.

January 9,2008
The Honorable Mary E. Peters
Page two

grant funds. Although thew funds are small, $2,000 per LEPC In Oklahoma, It Is
the only funding avallabla for LEPCs under the unfunded SARA T'lttca 111 federal
mandate. It s m e unlikely that volunteers wlll be able to spend 40 addlttanal
hours in detailed accounkg which duplicates infomation currently cdected In
the grant iiapplicallon and performance r9porta. Similarly, the propogsd q u e m
duprite informstion alnrady pmv5dsd conaernkfg training both deliver af training
and exlrriculum deuelopmamt.

The HMEP program ha8 been effective in awkting LEPCs to function h the
preperednesscontinuum d planning, exercising and tmhing. There appears Ea
be well daaummted accountebllity for the HMEP granl funds. As them hm bean
m IagisLatIve mandate to require a mwe detailed ecc~untingof grant funds, the
proposed lnfmtion W
h
y eeemrr to unnaoessedly burden local volunteer
planners and first reopondom.
What additional branefif to achieving (ha objecthre of enhandng community
preparedness 4
1come from the proposed lrbu,matlon collection m r t ?
I would wry much appreciate rn explanattbn end raticrns,lefor this i m s g d
infarmationactivity cdbctkmactivity inckwfiq how PHMSA will use the
additional Information ta enhaclora the HMEP program.

Thank you for your assistan- wlth this matter, should you require additional
infatmation, please do not hesitate to contact Rutji Van Mewk on my staff at 202
224-8204.

General Comment:The Pueblo Local Emergency Planning Committee agrees w i t h Mr.
Gab1 ehouse.

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Comments to DOT PHMSA Information Collection Activity Notice
Docket PHMSA-2007-27181
Electronically submitted
Dear OMB:
Thank you for this opportunity to comment on what we believe to be a very important notice.
We are the Local Emergency Planning Committee for Jefferson County, Colorado under the Emergency
Planning and Community Right-to-Know Act. In addition we are the Citizen Corp Council for Jefferson
County. In these roles we work with local emergency planning committees, first response organizations,
facilities, and the public regarding emergency planning, response and community right-to-know. We
work extensively with local emergency planning committees both in Colorado and throughout EPA
Region VIII.

LEPCs are totally dependant on HMEP funding distributed through the states to support our
planning, training and exercise activities. The dramatic increase in reporting burdens proposed
by the current notice will fall on organizationsjust like us as the users of the funding. These
burdens are not trivial. We are a totally volunteer group. Our sister organizations are also
volunteer groups. Devoting time and energy to reports detracts from their other very important
missions. Such an increase in burden will make it harder to justify seeking HMEP money.
We have reviewed the comment letters submitted by NASTTPO and the Colorado Emergency
Planning Commission and are in agreement with the points they make.
The proposed reporting burdens are focused inappropriately. There is a cycle to community
preparedness. That cycle is planning-training-exercises.You can't do one without the others.
You cannot judge the value of any one piece without understanding how LEPCs use money for
the entire cycle. PHMSA has focused on measuring attributes that, while easy to count, fail to
actually address the important aspects of how local agencies use HMEP monies. Unless you
seek reporting on the broader elements of the continuum, you cannot possibly measure whether
community preparedness has improved.
As NASTTPO has stated: "Training is pointless without a plan to train against and exercises to
measure whether training has covered necessary skills. Planning is pointless without exercises to
test the plan and the level of training. Exercises are pointless unless they test planning and skills
learned through training."
PHMSA should recognize that increased burdens need to have point. In this case collecting
information that does not truly measure community preparedness is foolish and inappropriate.

General C0mment:AS c o o r d i n a t o r f o r t h e Navajo County, AZ Local Emergency planning
Committee, I
s t r o n g l y concur w i t h t h e comments t h a t seek t o avoid increased burdens on
g r a s s r o o t s communities t h a t a r e a1 ready doing our l e v e l best t o meet e x i s t i n g
requirements and be successful i n our a c t i v i t i e s . we're c a r e f u l l y evaluated b our
own s e l f - a u d i t programs and well-coordinated by s t a t e e f f o r t s . YOU should r e a i z e
t h a t any i n c r e a s e i n i n f o r m a t i o n seeking w i l l u l t i m a t e l y f i l t e r down t o where t h e
d a t a e x i s t s , namely a t t h e l o c a l l e v e l . L e t ' s NOT rush i n t o c r e a t i n g a d d i t i o n a l
burdens where non e x i s t . we p l a n , t r a i n and exercise t o prevent, respond t o and
recover from i n c i d e n t s . -rhe Hazardous M a t e r i a l s Grant funds we r e c e i v e a r e small
because t h e r e h a s n ' t been a g r e a t deal o f money t o share among 1 5 counties i n
Arizona. we s t r e t c h t h e d o l l a r as f a r as we can and g e t as much bang f o r t h e
d o n ' t s t r e t c h us u n t i l we snap! we a l l l o s e t h a t way!
buck as p o s s i b l e . .

z

..

I support t h e s t r o n g words submitted i n support o f t a k i n g a deep b r e a t h and
assessing what your needs a r e before l e v y i n g requirements on SERCs, TERCs,
L E K S throughout t h e country.
R e s p e c t f u l l y submitted
Tim zaremba

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General Comment:I concur w i t h t h e s p i r i t o f t h e l e t t e r by N A S ~ P Oopposing t h e HMEP
Proposal.

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General Comment:Comments of t h e Local Emergency planning committee f o r Jefferson
County Colorado.

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General Comment: Comments o f t h e National ~ s s o cai t i o n o f SARA T i t l e I11 Program
officials

Page 1

Comment I n f o : =================
General C0mment:As t h e c o o r d i n a t o r o f a t h r e e county wide (Colorado) HazMat response
team w i t h
over 100 Hazardous M a t e r i a l s ~ e c h n i c i a n s , Isupport and concur w i t h t h e
comments o f t h e Colorado Emergenc planning commission (CEPC). AS t h e end
user of t h e funds, Idepend g r e a t y upon t h e a b i l i t y o f t h e CEPC t o fund t r a i n i n g ,
e x e r c i s e s and p l a n n i n g a c t i v i t i e s . Any r e d u c t i o n i n t h e s t a t e ' s a b i l i t y t o support
these a c t i v i t i e s would have a negative impact on t h e l o c a l emergency responder
t r a i n i n g programs. ~t has been my experience t h a t t h e funds a r e used
a p p r o p r i a t e l y and e f f i c i e n t l y f o r t h e intended purpose so Iam n o t sure where t h e
a d d i t i o n a l r e p o r t i n g requi rements a r e needed o r j u s t i f i e d .

T

Thank you f o r t h e o p p o r t u n i t y t o comment on these issues.

Page 1

General Comment:I agree w i t h and support those comments made by M r . Dan Roe and
others i n
opposition as a c i t i z e n o f t h e u n i t e d s t a t e s and as t h e t h e P i n a l County, Arizona,
Local
Emergency P I anni ng Committee (LEPC) coordinator

.

Page 1

National Association of SARA Title I11
Program Officials
Conct.rned wzth the Enrergefrcy Plunnln~and Con~munityRi~lrt-to-KirowAct

December 2 1,2007
Office of Management and Budget
Attn: Desk Officer for PHMSA
725 17th Street, N.W.
Washington, DC 20503
Re: Comments to Docket No. PHMSA-2007-27 181 (Notice No. 07- 10)
Dear OMB & PHMSA;
This letter is in response to Docket No. PHMSA-2007-27 181, Information
Collection Activities. The National Association of SARA Title I11 Program Officials
(NASTTPO) is made up of members and staff of State Emergency Response
Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), Local
Emergency Planning Committees (LEPCs), various federal agencies, and private
industry. Members include state, tribal, or local government employees as well as private
sector representatives with Emergency Planning and Community Right to Know
(EPCRA) program responsibilities, such as health, occupational safety, first response,
environmental, and emergency management. The membership is dedicated to working
together to prepare for possible emergencies and disasters involving hazardous materials,
whether they are accidental releases or a result of terrorist attacks. Thank you for the
opportunity to again comment in opposition to the proposed information collection
proposal.
As stated in earlier comment letters, our membership is heavily dependent on
HMEP funding distributed through the states. The burdens of the proposed information
collection will fall on the local, tribal, and other organizations that are users of the
planning and training grant funding. Many of these member agencies are composed of
volunteers.

Mr. Willke stated in his presentation to the NASTTPO conference in November
2007 that PHMSA wants to tell the story of the HMEP grant program, "what it does at
the ground level, whatit accomplishes, the importance of this program to the States and
your communities" and "is this the only money that they get, how do they use it, what do
they do that they couldn't do with it otherwise." We appreciate that sentiment and
appreciate PHMSA's need to account for how the money in this program is spent;
however, PHMSA can effectively communicate the story and message of the grant

program by assessing the information PHMSA already collects. In fact PHMSA does
that now with its existing reporting and data collection effort. The HMEP grant program
is mature and well understood by recipients and Congress. Even GAO has noted that this
is a well run program serving the purposes for which it was designed. GAOIRCED-00190
The proposed additional use of the volunteer organizations' time to compile
meaningless additional information will detract from their other very important missions,
namely making our communities safer. Mr. Willke emphasized that PHMSA wanted to
build the grant program and make it stronger, but not by detracting fiom communities'
emergency response and preparedness activities. This proposal does detract - it is
harmful to community preparedness.
Sadly, PHMSA has focused on measuring attributes that, while easy to count, fail
to actually address the important aspects of how local agencies use HMEP monies.
PHMSA is out of touch with the White House in this approach. In a speech to the
National Congress on Secure Communities on December 18,2007, Mr. Joel Bagnal,
Assistant to the President for Homeland Security and Counterterrorism emphasized that
emergency planning is a process. You cannot judge the value of any one piece without
understanding the entire cycle. PHMSAYsapproach in this proposal is inappropriate as it
measures aspects of the process that fail to emphasize the planning-training-exercise
cycle that local agencies follow.
Training is pointless without a plan to train against and exercises to measure
whether training has covered necessary skills. Planning is pointless without exercises to
test the plan and the level of training. Exercises are pointless unless they test planning
and skills learned through training.

(1) Whether the proposed collection of information is necessary for the proper
performance of the functions of the Department, including whether the information
will have practical utility.
The inclusion of the proposed questions in the HMEP grant application is not
necessary for the proper performance of the Department. PHMSA states that the
information requested will provide data to evaluate emergency response planning and
training programs conducted by States and Indian tribes. PHMSA further states the
information sought will enhance emergency response preparedness and response by
allowing PHMSA and its State and tribal partners to target gaps in current planning and
training efforts and focus on strategies that have been proven to be effective. In addition,
Mr. Willke stated that the real effort PHMSA is making is "to increase the HMEP grant
program to the states, to better understand the areas of greatest need and where this
money is going and our accountability to Congress."
Given the objectives of the grant program and the information the Secretary
currently collects under this program, the proposed questions are unnecessary to these
stated purposes. We believe that PHMSA has broad authority to collect information from

grant recipients but that authority should not be used without a clear plan and purpose for
the collection of non-essential information. The proposed questions do not further assist
the Secretary to determine whether the State or tribe's activities are eligible for funding,
the Secretary's function under the grant program. See 49 C.F.R. § 110.40. Also, the
proposed questions do not further assist the Secretary to comply with the reporting duties
under Section 5 116(k). See 49 U. S.C. 6 5 116(k). PHMSA can adequately "account for
the program and communicate its effectiveness," as Mr. Willke stated to NASTTPO
when discussing reauthorization, with the information currently collected.
The purpose of the Hazardous Materials Transportation Act (HMTA) is the
provision of "adequate protection against the risks to life and property inherent in the
transportation of hazardous material in commerce." Section 5101. And, the purpose of
the Hazardous Materials Public Sector Training and Planning Grants Program is to
support "the emergency planning and training efforts of States, Indian tribes, and local
communities to deal with hazardous materials emergencies, particularly those involving
transportation," and to enhance the implementation of the Emergency Planning and
Community Right-To-Know Act (42 U.S.C. 11001). Section 110.1. Grant applicants are
currently required to provide project narrative statements, budget information, statements
of work, financial reports, audits, and performance reports. See Sections 110.30, 110.70,
110.90. The proposed information collection duplicates these efforts. LEPCs should not
be required to use their valuable time and decrease community preparedness, contrary to
the HMTA's purpose and objectives, to assemble information duplicative of what
PHMSA already collects or which serves no purpose.

Mr. Willke also stated that "it is not our intention to put a burden on the LEPCs or
other small organizations to explain what they do, but I hope as representatives in the
States we can get at that level some understanding." Through this statement, PHMSA
shows that it misunderstands the relationship between the LEPCs and the SERCs and
overlooks the fact that the burden of the proposed information collection will fall heavily
to the LEPCs and other small organizations to provide additional accounting for their
activities.
In addition, as stated in previous comment letters, the overall intent of the grant
program is one of leniency so as to allow States and tribes to engage in a wide variety of
administrative activities, research, and field work directed toward the safe transport of
hazardous materials. A more narrow interpretation, signified by the specificity of the
proposed questions, defeats the overall purpose of the grant program by restricting the
flow of money to activities the State or tribe considers necessary to the safe transportation
of hazardous materials through its jurisdiction.
Moreover, if the Secretaries of Transportation, Labor, and Energy, Directors of
the Federal Emergency Management Agency and National Institute of Environmental
Health Sciences, Chairman of the Nuclear Regulatory Commission, and Administrator of
the Environmental Protection Agency must periodically review all emergency response
and preparedness training programs of that department, agency, or instrumentality to
minimize duplication of effort and expense of the department, agency, or instrumentality

in carrying out the programs, the Secretary of Transportation should similarly work to
minimize duplication of effort and expense of State emergency response commissions.
See Section 5 116(h).
Beyond the general flaws expressed, the subsections below discuss specifically
how the proposed questions duplicate information currently collected under the HMTA
and grant program.
A. Fees

First, PHMSA proposes to revise the information collected concerning State or
tribe imposed fees related to the transportation of hazardous materials. Under Section
5 125(g)(1), States and tribes are permitted to impose fees related to the transportation of
hazardous materials if the fee is fair and used for a purpose related to transporting
hazardous material, including enforcement and planning, developing, and maintaining a
capability for emergency response. Further under Section 5 125(g)(2), the Secretary may
request information on the basis on which such fee is levied, the purpose for which the
revenues are used, the annual total amount collected, and other such matters as the
Secretary requests. Currently, States and tribes are required to provide in their grant
applications a written statement explaining whether the applicant assesses and collects
fees on the transportation of hazardous materials and whether the fees are used solely to
carry out purposes related to the transportation of hazardous materials. Section
110.3O(a)(4).
While the Secretary is authorized under Section 5 125(g)(2) to request more
detailed information about such fees than currently requested, some of the additional
proposed questions do not assist the Secretary's determination of whether fees are fair
and used for a purpose related to transporting hazardous material. For example, asking
what state agency administers the fee and whether company size is considered when
assessing the fee does not aid in the determination of whether the fee is fair and used for a
purpose related to transporting hazardous material. See proposed questions 2a and 2c.
This information is unrelated to the purpose of the fees thus is unnecessary and does not
have practical utility.

B. Planning Grants
Second, PHMSA proposes to revise the current information collection concerning
planning grants. PHMSA states the revised information collection will enable PHMSA
to more accurately evaluate the effectiveness of the grant program in meeting emergency
response planning needs.
The proposed planning questions are duplicative of information currently
collected in the grant application and performance reports. PHMSA proposed question 1
asks what amount of planning grant funds was used to assist LEPCs and the number of
LEPCs assisted. However, Section 5 116(a)(2) only requires the State agree to make at
least 75 percent of a planning grant available to LEPCs and Section 110.30(b)(3)requires

a written statement of that agreement in addition to an explanation of how the State
intends to make such funds available. Furthermore, Section 110.70(a)(l) requires the
State to conduct fiscal control and accounting procedures sufficient to permit tracing of
funds provided for planning to a level of expenditure adequate to establish that at least 75
percent of planning funds were made available to LEPCs. This information currently
provided by grant applicants allows PHMSA to determine that the State made at least 75
percent of the planning grant available to LEPCs, as required by the HMTA. See Section
51 16(a).
Proposed questions la-e are also duplicative and unnecessary. Under Section
110.30(b)(l), State grant applicants must submit a statement that the State is complying
with the Emergency Planning and Community Right-To-Know Act. Under this Act,
LEPCs are required to complete preparation of an emergency plan and review the plan at
least once a year. 42 U.S.C. 8 11003(a). Further, LEPCs must evaluate the need for
resources necessary to develop, imple.ment, and exercise the emergency plan. Section
11003(b). LEPCs must also include in the emergency plan information on notification,
evacuation plans, training programs, and methods and schedules for exercising the
emergency plan. Section 11003(c). Thus, question l b is unnecessary because LEPCs
must review their emergency response plans annually; question l c is unnecessary
because LEPCs are required to develop emergency plans; question Id is unnecessary
because LEPCs address training programs and exercises in their emergency response
plans; and question 1e requests a level of detail, as do questions la-d, that has no
practical utility so long as a State makes at least 75 percent of planning grant funds
available to LEPCs, as statutorily required.
In addition, proposed question 2 is unnecessary because States and tribes already
provide the requested information and the additional level of detail proposed will not
further assist PHMSA's evaluation of the effectiveness of the planning grant program.
The grant application requires the applicant provide a project narrative statement of the
goals and objectives of each proposed project including: the current abilities of the
applicant's program for preparedness response; the need to sustain or increase the
program; the current participation or intention to assess the need for a regional team; the
impact the grant will have on the program; whether the program knows or intends to
assess transportation flow patterns; a schedule for implementing the proposed grant
activities; and a description of how the program will be monitored. Section 110.30(b)(5).
The grant application also requires a statement of work in support of the proposed
project describing and prioritizing the activities and tasks to be conducted, the costs
associated with each activity, and a schedule for implementation. Section 110.30(a)(7).
And, applicants are required to submit performance reports for planning grants including
comparisons of actual accomplishments to the stated goals and objectives. Section
110.90(b)(2). Therefore, the information in proposed questions la-e is already provided
in the grant application and performance reports. Moreover, applicants are required to
provide detailed budget information in Standard Forms 269,270, and 424A, as required
by Sections 18.41(b), 110.90(b)(4), and 110.30(a). Thus, the breakdown of fund usage
requested in the proposed questions is unnecessary and has no practical utility due to the

provision of budget information by States and tribes in the grant applications,
performance reports, and budget forms.
Lastly, the requested information in proposed question 3 is also provided in the
grant application project narrative, as stated above. Section 110.30. Therefore, such
information collection is unnecessary.
C. Training Grants
Third, PHMSA proposes to revise the current information collection concerning
training grants. PHMSA states the revised information collection will enable PHMSA to
more accurately evaluate the effectiveness of the grant program in meeting emergency
response training needs.
The proposed training questions are duplicative of information currently collected
under the grant application and performance reports; thus are unnecessary. First, Section
110.30(~)(5)requires grant applicants provide a project narrative of the goals and
objectives of each proposed project including: a description of the current hazardous
materials training programs; the training audience; the estimated total number of persons
to be trained; the ways in which the training grants will support the training program; a
description of how the training will be monitored; and a schedule for implementing the
proposed training grant activities. Second, Section 110.90(b)(2) requires project
managers to submit a performance report that includes a comparison of actual
accomplishments to the stated goals and objectives. Therefore, the proposed questions
la, lb, and l e are unnecessary because grant applicants provide the requested
information in the grant application and performance reports. Furthermore, as stated in
response to the planning questions above, grant applicants are required to provide
detailed budget information in Standard Forms 269,270, and 424A, as required by
Sections 18.41(b), 110.90(b)(4), and 110.30(a); thus, the detailed breakdown of fund
usage requested in the proposed questions is unnecessary and has no practical utility due
to the provision of budget information by States and tribes in the grant applications,
performance reports, and budget forms.
In addition, questions l c and Id are unnecessary because the HMTA only requires
a State or tribe certify that the total amount the State or tribe expends to train public
sector employees will equal at least the average level of expenditure for the last two fiscal
years, that the State or tribe will use a training course identified under Section 5 115 or
another course the Secretary detennined consistent, and that a State agrees to make at
least 75 percent of the grant available for training public sector employees. Section
51 16(b). The statute also lists the possible uses of the training grant including tuition,
travel, room and board, and use by the State or tribe to provide training. Section
51 16(b)(3). The proposed questions l c and Id do not have practical utility in assisting
PHMSA to determine the effectiveness of the training grant program because such
specificity is not required by the HMTA and does not assist the Secretary in carrying out
the broad objectives of the training grant program. In addition, the proposed questions do

not provide additional information, beyond that already collected, which outweighs the
burden of collecting such information; therefore these questions are inappropriate.
Proposed question 2 is duplicative and unnecessary. Grant applicants currently
describe their monitoring systems for their training programs in Section 110.30(~)(5)(iii).
In addition, States must provide a written certification explaining how the State is
complying with sections 30 1 and 303 of the Emergency Planning and Community RightTo-Know Act, which requires a State to establish State Emergency Response
Commissions, Local Emergency Planning Committees, and emergency planning districts.
See Section 11001. Therefore, the information requested in proposed question 2 is
currently provided in the grant application and the question is unnecessary.
Lastly, the requested information in proposed question 3 is also provided in the
grant application project narrative, as stated above. Section 110.30. Therefore, such
information collection is unnecessary.
(2) the accuracy of the Department's estimate of the burden of the proposed
information collection.

PHMSA has underestimated the burden and impact of the proposed information
collection. The proposed information collection will unnecessarily take valuable time
fiom the individuals volunteering to protect United States citizens fiom hazardous
material hazards.
PHMSA states that it appreciates concerns about additional burden detracting
fiom grantees planning and training efforts but believes the more detail information
requested should be readily available due to the current data collection. However,
PHMSA fails to consider the true difference between the general statements concerning
the breakdown of grant administration and the minutely detailed calculations requested in
the proposed collection. The precise amount and percentages calculations proposed will
be very burdensome on the majority of communities, particularly since most administer
their programs using volunteers. Mr. Willke stated that PHMSA is looking to "account
for every dollar, that we know where 100% of the money goes in terms of the allowable
expenditures for the funds." Requiring over LEPCs to conduct this precise level of
accounting will detract fiom community preparedness, contrary to the statutory
objectives of the HMTA and the grant program. .
Even though Mr. Willke continued that PHMSA is "not looking for it
[accounting] to be brought down to the local LEPC levels" because "it wouldn't do us
any good as well to go down to that level, but perhaps to the State level, to give us some
understanding of that," the level of accounting in the proposed information collection
does go down to the LEPCs and will heavily burden these volunteer organizations. States
distribute this money to LEPCs and they must rely on the LEPCs to report on its use.
Further, PHMSA increased the burden of the proposed information collection on
applicants by the inclusion of unnecessary questions, as discussed above. PHMSA

should delete the questions that are unrelated to the objectives of the HMTA, such as the
fees questions 2a and 2c. PHMSA should also delete the proposed questions collecting
information currently submitted in the grant applications, budget forms, and performance
reports. The burden on applicants to compile information currently provided to PHMSA
is unnecessary and detracts from efforts spent on community response and preparedness
activities.
Moreover, PHMSA fails to recognize the continuity of the planning, exercise and
training activities conducted under the grant program. The planning activities consist of
numerous connected parts that are virtually impossible to separate out dollar for dollar.
Similarly, the training activities cannot properly be broken out of the continuum of
planning, training, and exercises. Requiring individual dollar assessments of each phase
of these programs is unreasonable due to the continuity of these programs. Further,
PHMSA has not clearly stated the necessity of the proposed level of micromanagement.
Without a clear purpose for the proposed level of detailed itemization and because of the
heavy burden providing such detail will place on grant applicants, the proposed
information collection is unnecessary and unreasonable.
(3) ways to enhance the quality, utility, and clarity of the information to be
collected; and (4) ways to minimize the burden of the collection of information on
respondents, including the use of automated collection techniques or other forms of
information technology.

As discussed above, the proposed information collection is unnecessary and has
no practical utility due to the information currently provided by grant applicants in the
grant applications, budget forms, and performance reports. However, if PHMSA must go
forward with some enhanced information collection, the burden on applicants can be
reduced by deleting questions requesting information collected elsewhere and questions
unrelated to the objectives of the HMTA and the regulation. The level of detail must also
be refined as the proposed will simply overwhelm these mostly volunteer organizations.
Requiring applicants to use their valuable and limited time to duplicate reporting efforts
currently conducted and assess information already available to PHMSA instead of
focusing on community response and preparedness is contrary to the objectives of the
HMTA and the grant program.
If PHMSA must collect this in-depth level of information, PHMSA should create
an automated questionnaire that utilizes a multiple choice questionhnswer format. The
automated questionnaire should begin with a yeslno question to determine general
applicability and allow applicants to opt out of the question if it does not apply. The
automated questionnaire should then allow applicants to estimate and choose answers
from proposed choices, representing a grant applicant's general knowledge of the state
program. For example, answers might give numerical ranges representing percentages,
monetary amounts, or number of times a specific exercise was undertaken. Also,
questions that direct the applicant to make written descriptions of grant moneys should be
reformatted into a multiple choice style. The automated questionnaire can provide a

space for additional comments at the end of each section should an applicant
affirmatively choose to take on an additional time burden.

Conclusion
In conclusion, the proposed information collection should not go forward because
it is not necessary for the proper performance of the Department due to the current
information collected and lack of clearly stated purpose for the additional information
requested. In addition, PHMSA failed to respond to concerns previously expressed and
actually increased the reporting burden on grant applicants. Most importantly, PHMSA
fails to recognize the continuity of the planning and grant program and would actually
reduce community preparedness, contrary to the purpose of the HMTA and grant
program, due to PHMSA's misapplied reporting emphasis and the unnecessary use of the
grant applicant's time and efforts.
Thank you for your consideration.
Respectfully,
NASTTPO

Comment I n f o : =================
General Comment:word document submitted.

Page 1

BY ON-LINE POSTING - December 20,2007 (1 1:30 PM MST)
Office of Management and Budget
Attention: Desk Officer for PHMSA
725 17" Street, NW
Washington, DC 20503
Reference:

Docket No. PHMSA-2007-2718 1 (Notice No. 07-10)
Information Collection Activities
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT
Notice and request for comments.

These comments should be considered with my previous comments on this subject as
well as the inputs provided to Ted Wilke at the National Association of SARA Title
Three Program Officials (NASTTPO's) Mid-Year Conference Meeting in November,
2007.
1.
PHMSA's proposed collection of information is NOT necessary for the proper
performance of the functions of the Department. RSPA and its successor PHMSA have
clearly established one of the finest track records, (as attested to by GAO evaluations,
grantee comments and national acclaim), for the proper execution of the Hazardous
Materials Emergency Preparedness Grants program for both Planning and Training. The
additional information being sought by PHMSA, over and above what is already
collected, will have little practical utility and contribute minimally, if at all, to program
enhancements. There's an old expression that seems to clearly fit these proposed changes
to PHMSA regulations that PHMSA's leadershiplmanagement should heed: "If it ain't
broke.. .don't fix it!" If PHMSA believes something is "broke" you have a long listing of
grantees with whom to discuss the issue and work to resolve those issues. Dictating
changes because of whatever pressures are being felt at PHMSA that will ultimately
impair community safety by diverting valuable time needed to plan, train and exercise to
completing questionably valuable paperwork isn't a logical path to follow. It's a
dangerous path to follow.
I suggest that PHMSA management stand back and take a deep breath and if you are
compelled by Congress to provide additional information, then get the stakeholders
together by whatever practical means necessary BEFORE publishing rules that are going
to significantly and negatively impact on grassroots accomplishment of safety related
missions. There is an apparent infatuation with numbers and metrics that doesn't pass the
common-sense tests at the grassroots levels. Planners and responders are doing their best
to keep their communities safe. They know what they need and they therefore plan and
train to meet those needs. They are supported in those efforts by their Local Emergency
Planning Committees and State Emergency Response Commissions. That successful
functionality has been in existence for two decades and while levels of activities vary
throughout the nation, you'd be hard pressed to find a planner or a responder that isn't
exhaustively doing their level best to save lives, protect property, work problems, report
accurately and ensure recovery to normalcy in minimum time. That's what the HMEP

funds support and the funds support it positively because of the logic in which the basic
law was created that allowed and encouraged creative thinking and use of funds within
clear guidelines, with minimal reporting. Again.. . "if it ain't broke.. . don't fix it!"
If you believe it to be broken, discuss that. PHMSA should be specific, not on a fishing
expedition that will significantlyburden tribes, states, and local jurisdictions. Does
PHMSA have a system in place for measuring the effectiveness of emergency responses
to hazardous materials incidents? What is it? Has PHMSA hosted workshops to discuss
that issue? When? If not, why not? Why shift the burden to tribes, states and local
jurisdictions rather than work to solve problems at the national level using the
stakeholder and partnership processes that have proven so successful. How were the
questions you arrived at derived?
2.
The Department's estimate of the burden of the proposed information collection
is, in my opinion, way.. .way off base. Where were the stakeholders in the creation of
these questions? Where were the grantees and their sub-grantees in this derivation?
PHMSA's sister agencies who have failed to involve stakeholders have paid the price of
failure, time and time again, for not involving their stakeholders properly. In this
instance, the key stakeholders are the ones you are looking to burden, namely: local,
parish, county, tribal and state partners. How were they engaged in the promulgation of
these proposed rules? How were TERCs, SERCs ,LEPCs engaged? Were their daily
burdens recognized and were they given ample time to study, evaluate and participate in
providing inputs? Have you asked yourself, what's the rush? Why only a 30 day period
for this and why so close to the holidays? This whole process only started in July, 2007.
Again, what's the rush? And once again, before fixing something that isn't broken,
ensure you need to make these changes. If there are factions pushing for changes, and
factions opposed to these changes, get them together and work on consensus. Let the true
political rather than the dictatorial process work. Don't rush it through a 30 day comment
period. Take a deep breath and take your time to get it done right. After all, you're
looking to change nearly two decades of success. How sure is PHMSA that this will
improve what is is already functioning in a sound manner? How can you be sure if the
stakeholders didn't assist you in coming up with your additional questions? You noted
that the HMEP grant program was established over 15 years ago and has continued with
few changes since its initial implementation. You cite what the funds can be used for and
how the grant is funded. Sure seems that there's an underlying concern and agitation that
somehng should change. W h y There's a continuum that is an accepted truth in
community readiness, namely planning, training and exercising. It's been that way for
thousands of years and will continue to be that way for thousands more if we're careful to
preserve logic in how we conduct our affairs. Let PHMSA continue to lead the fold in
accepting that continuum as a basic truth, knowing that State Emergency Response
Commissions, Tribal Emergency Response Commissions, and Local Emergency
Planning Committees, use HMEP funds to complete that entire cycle. Perhaps PHMSA
needs assistance from the grassroots levels to understand that process. Come on down!
3. PHMSA should certainly bring the stakeholders together to ascertain the methods to
enhance the quality, utility, clarity of information that is to be collected. If a survey is

needed, PHMSA should use the grantees to help develop that survey so that the right
information is gathered. PHMSA should host a key partner meeting that has a clear,
participative agenda so that appropriate discussions can take place.
What is it that PHMSA believes is wrong with the quality, utility and clarity of
information gathered now? I would think that PHMSA must have something in mind in
that arena if it's looking to enhance those information qualifiers.
4. Once PHMSA, through the stakeholder process, minimizes the questions being asked
to only essential elements of information and ensures that the change to process will not
prove to be the straw that breaks the camel's back, then.. .and only then, should the
method of collection be further explored. At first blush, my suggestion would be
reporting through a secure website into an online database managed by PHMSA would
be the way to go.. .but that's at first blush.

In summary PHMSA should put some brakes on this train and re-approach the issue
through key stakeholder sessions that involve interested parties that are pushing for
change and those who do not see a need for the change before traveling down tracks that
may cause derailment of a successful program.
Respectfully submitted,
Daniel Roe

General Comment:The Adams County LEPC concurs w i t h t h e comments submitted by both
the
NASlTPO and t h e Colorado Emergenc Planning Commission. we would l i k e t o
s t r e s s t h e concepts o f t h e f a c t t a t t h e r e i s a c y c l e t o community preparedness
t h a t i n c l u d e s p l a n n i n - t r a i n i n g - exercises. None o f these steps can e x i s t
independent o f t h e o t e r s and expect success. I n a d d i t i o n , you cannot judge t h e
v a l u e o f any one o f these ieces w i t h o u t understanding how LEPCS use money t o
a s s i s t i n t h e c y c l e as a w o l e .

1

YI

!

PHMSA has focused on measuring a t t r i b u t e s t h a t a r e easy t o count, y e t f a i l t o
address t h e important aspects o f how l o c a l agencies a c t u a l l y use HMEP monies.

T r a i n i n g i s p o i n t l e s s w i t h o u t a p l a n t o t r a i n against and exercises t o measure
whether o r n o t t h e t r a i n i n g has covered e s s e n t i a l and necessary s k i l l s . planning i s
p o i n t l e s s w i t h o u t e x c e r c i ses t o t e s t t h e p l a n and t h e e f f e c t i v e n e s s o f t h e t r a i n i n g .
F i n a l l { , exercises a r e p o i n t l e s s unless they t e s t planning and t h e s k i l l s learned
t h e t r a i n i n g . A t t h e r o o t , these t h r e e pieces a r e i n t e r t w i n e d and cannot
and s o u l d n o t be t r e a t e d as separate e n t i t i e s .

rouil

Page 1

Comment I n f o : =================
General Comment:I concur w i t h PHMSA-2007-27181-0007

Page 1

General C0mment:BY ON-LINE
POSTING
O f f i c e o f Maria ement and Budget
A t t e n t i o n : Des o f f i c e r f o r PHMsA
725 1 7 t h S t r e e t , NW
washi ngton, DC 20503

? December 20, 2007 (11:30 PM MST)

Z

Reference:
DOT

(PHMSA),

Docket NO. PHMSA-2007-27181 (Notice No. 07-10)
Information c o l l e c t i o n A c t i v i t i e s
P i p e l ine and Hazardous Materi a1 s S a f e t y ~ d mni i s t r a t i on
N o t i c e and request f o r comments.

These comments should be considered w i t h my previous comments on t h i s
s u b j e c t as w e l l as t h e i n p u t s provided t o Ted w i l k e a t t h e N a t i o n a l A s s o c i a t i o n of
SARA T i t l e Three Program O f f i c i a1 s (NASTTPO?~) Mid-Year Conference Meeting i n
November, 2007.
1.
PHMSA?s proposed c o l 1e c t i on o f in f o r m a t i on is NOT necessary f o r t h e
proper performance o f t h e f u n c t i o n s o f t h e Department. RSPA and i t s successor
PHMSA have c l e a r l y e s t a b l i s h e d one o f t h e f i n e s t t r a c k records, (as a t t e s t e d t o
by GAO e v a l u a t i o n s , grantee comments and n a t i o n a l acclaim), f o r t h e proper
e x e c u t i o n o f t h e Hazardous M a t e r i a l s Emergency Preparedness Grants p r o
f o r b o t h Planning and T r a i n i n g . The a d d i t i o n a l i n f o r m a t i o n being
PHMSA, over and above what i s a l r e a d y c o l l e c t e d , w i l l have l i t t l e
and c o n t r i b u t e m i n i m a l l y , i f a t a l l , t o program enhancements. There?s an o l d
expression t h a t seems t o c l e a r l y f i t these proposed changes t o PHMSA
r e g u l a t i o n s t h a t PHMSA?~
leadership/management should heed: ? ~ ift a i n ? t broke?
don?t f i x i t ! ? I f PHMSA b e l i e v e s something i s ?broke? you have a l o n g 1 is t i n g o f
grantees w i t h whom t o discuss t h e i s s u e and work t o resolve those issues.
D i c t a t i n g changes because o f whatever pressures a r e being f e l t a t PHMSA t h a t
w i l l u l t i m a t e l y i m p a i r community s a f e t y by d i v e r t i n v a l u a b l e t i m e needed t o p l a n ,
t r a i n and e x e r c i s e t o completing questionabl valua l e paperwork i s n ? t a l o g i c a l
p a t h t o f o l l o w . ~ t ? sa dangerous p a t h t o f o l ow.

z

I!

Isuggest t h a t PHMSA management stand back and t a k e a deep b r e a t h and i f you
a r e com e l l e d by Congress t o p r o v i d e a d d i t i o n a l i n f o r m a t i o n , then g e t t h e
stakeho ders t o g e t h e r by whatever p r a c t i c a l means necessary BEFORE
pub1 i s h i n g r u l e s t h a t a r e going t o s i g n i f i c a n t l y and n e g a t i v e l y impact on g r a s s r o o t s

C

accomplishment o f s a f e t y r e l a t e d missions. There i s an apparent i n f a t u a t i o n w i t h
numbers and m e t r i c s t h a t doesn?t pass t h e common-sense t e s t s a t t h e
g r a s s r o o t s l e v e l s . Planners and r e s onders a r e doing t h e i r b e s t t o keep t h e i r
communities safe. They know what t ey need and t h e y t h e r e f o r e p l a n and t r a i n t o
meet those needs. They a r e supported i n those e f f o r t s by t h e i r Local Emergency
committees and S t a t e Emergency Response Commissions. That
p1anni n?u l f u n c t i o n a l i t y has been i n existence f o r two decades and w h i l e l e v e l s o f
success
a c t i v i t i e s v a r y throughout t h e n a t i o n , you?d be hard pressed t o f i n d a planner o r a
responder t h a t i s n ? t e x h a u s t i v e l y doing t h e i r l e v e l b e s t t o save l i v e s , p r o t e c t
p r o p e r t y , work roblems, r e o r t a c c u r a t e l y and ensure recovery t o normalcy i n
minimum t i m e . T a t ? s what t e HMEP funds support and t h e funds support i t
p o s i t i v e l y because o f t h e l o i c i n which t h e b a s i c law was c r e a t e d t h a t allowed
and encouraged c r e a t i v e t h i n i n g and use o f funds w i t h i n c l e a r g u i d e l i n e s , w i t h
minimal r e p o r t i n g . Again? ? i f i t a i n ? t broke? don?t f i x i t ! ?

g

R

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f

x

If ou b e l i e v e i t t o be broken, discuss t h a t .

PHMSA should be s p e c i f i c , n o t on a
f i s i n g e x p e d i t i o n t h a t w i l l s i g n i f i c a n t l y burden t r i b e s , s t a t e s , and l o c a l
j u r i s d i c t i o n s . Does PHMSA have a system i n place f o r measuring t h e
e f f e c t i v e n e s s o f emergency responses t o hazardous m a t e r i a l s i n c i d e n t s ? what i s
Page 1

PH~SA-2007-27181-0037[1]
i t ? Has PHMSA hosted workshops t o discuss t h a t issue? when? I f n o t , why
n o t ? why s h i f t t h e burden t o t r i b e s , s t a t e s and l o c a l j u r i s d i c t i o n s r a t h e r than
work
t o s o l v e problems a t t h e n a t i o n a l l e v e l using t h e stakeholder and p a r t n e r s h i p
processes t h a t have proven so successfu1. HOW were t h e questions you a r r i v e d a t
d e r i ved?

2.
he department?^ estimate o f t h e burden o f t h e proposed i n f o r m a t i o n
c o l l e c t i o n i s , i n my o p i n i o n , way?way o f f base. where were t h e stakeholders i n
t h e c r e a t i o n o f these questions? where were t h e grantees and t h e i r sub-grantees
i n t h i s d e r i v a t i o n ? PHMSA?Ss i s t e r agencies who have f a i l e d t o i n v o l v e
stakeholders have p a i d t h e p r i c e o f f a i l u r e , time and t i m e again, f o r n o t i n v o l v i n g
t h e i r stakeholders r o p e r l y . I n t h i s instance, t h e key stakeholders a r e t h e ones
you a r e l o o k i n g t o purden, namely: l o c a l , p a r i s h , county, t r i b a l and s t a t e p a r t n e r s
How were t h e y engaged i n t h e promulgation o f these proposed r u l e s ? How were
TERCs, SERCs , LEPCS engaged? were t h e i r d a i l y burdens recognized and were
t h e y g i v e n ample t i m e t o study, evaluate and p a r t i c i p a t e i n p r o v i d i n g i n p u t s ? Have
you asked y o u r s e l f , what?s t h e rush? why o n l y a 30 day p e r i o d f o r t h i s and why
so c l o s e t o t h e h o l i d a y s ? T h i s whole process o n l y s t a r t e d i n ~ u l y ,2007. Again,
what?s t h e rush? And once again, b e f o r e f i x i n g something t h a t i s n ? t broken, ensure
you need t o make these chan es. ~f t h e r e a r e f a c t i o n s pushing f o r changes, and
f a c t i o n s opposed t o these c anges, get them together and work on consensus.
L e t t h e t r u e p o l i t i c a l r a t h e r than t h e d i c t a t o r i a l process work. Don?t rush i t
through
a 30 day comment p e r i o d . Take a deep b r e a t h and take your t i m e t o g e t i t done
r i g h t . A f t e r a l l , you?re l o o k i n g t o change n e a r l y two decades of success. How sure
i s PHMSA t h a t t h i s w i l l improve what i s 1s a1 ready f u n c t i o n i n g i n a sound manner?
How can you be sure i f t h e stakeholders d i d n ? t a s s i s t you i n coming u w i t h your
a d d i t i o n a l questions? You noted t h a t t h e HMEP g r a n t program was e s t a l i s h e d
over 1 5 years ago and has continued w i t h few changes since i t s i n i t i a l
implementation. YOU c i t e what t h e funds can be used f o r and how t h e g r a n t i s
funded. sure seems t h a t there?s an u n d e r l y i n g concern and a g i t a t i o n t h a t
something should change. wh ? ~ h e r e ? sa continuum t h a t i s an accepted t r u t h
i n community readiness, name y planning,
and e x e r c i s i n g . ~ t ? sbeen t h a t
way f o r thousands o f years and w i l l continue
trai tnio e t h a t way f o r thousands more i f
we?re c a r e f u l t o preserve l o g i c i n how we conduct our a f f a i r s . L e t PHMSA continue
t o l e a d t h e f o l d i n accepting t h a t continuum as a b a s i c t r u t h , knowing t h a t s t a t e
Emergenc Response commissions , ~ rbali Emergency Response commissions ,
and Loca Emergency Planning committees, use HMEP funds t o complete t h a t
e n t i r e c y c l e . Perhaps PHMSA needs assistance from t h e grassroots l e v e l s t o
understand t h a t process. come on down!

#

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3 . PHMSA should c e r t a i n l y b r i n g t h e stakeholders together t o a s c e r t a i n t h e
methods t o enhance t h e q u a l i t y , u t i l i t y , c l a r i t y o f i n f o r m a t i o n t h a t i s t o be
c o l l e c t e d . 1f a surve i s needed, PHMSA should use t h e grantees t o h e l p develop
t h a t survey so t h a t t e r i g h t i n f o r m a t i o n i s gathered. PHMSA should host a key
p a r t n e r meeting t h a t has a c l e a r , p a r t i c i p a t i v e agenda so t h a t a p p r o p r i a t e
d i scussi ons can t a k e place.

Z

e

what i s i t t h a t PHMSA b e l i e v e s i s wron w i t h t h e q u a l i t y , u t i l i t y and c l a r i t y o f
i n f o r m a t i o n gathered now? Iwould t h i n t h a t PHMSA must have somethin i n
mind i n t h a t arena i f it ? s l o o k i n g t o enhance those i n f o r m a t i o n q u a l i i e r s .

7

Once PHMSA, through t h e stakeholder process, minimizes t h e questions
being asked t o o n l y e s s e n t i a l elements o f i n f o r m a t i o n and ensures t h a t t h e
change t o process w i l l n o t prove t o be t h e straw t h a t breaks t h e camel?s back,
then?and o n l y then, should t h e method o f c o l l e c t i o n be f u r t h e r explored. A t f i r s t
b l u s h , my suggestion would be r e o r t i n g through a secure website i n t o an o n l i n e
database managed by PHMSA would e t h e way t o go?but t h a t ? s a t f i r s t b l u s h .

4.

g

I n summary PHMSA should p u t some brakes on t h i s t r a i n and re-approach t h e
i s s u e through key stakeholder sessions t h a t i n v o l v e i n t e r e s t e d p a r t i e s t h a t a r e
Page 2

~~~S~-2007-27181-0037[l]
pushing f o r change and those who do not see a need f o r t h e change b e f o r e
t r a v e l i n g down t r a c k s t h a t may cause derailment o f a successful program.
R e s p e c t f u l l y submitted,
D a n i e l Roe
Mesa, AZ

Page 3

Randall J. McConnell
RJM Concepts, LLC
8281 West Evans Avenue
Lakewood, Colorado 80227
December 21,2007
Office of Management and Budget
725 17thstreet, N.W.
Washington, DC 20503
Attn: Desk Officer for PHMSA
Re; Comments to Docket No. PHMSA-2007-27181(Notice No. 07-10)
Dear PHMSA:
This letter is in response to the docket number referenced above. As a professional in
the emergency preparedness and response field I have over 35 years experience at
Federal facilities, private industrial operations, major healthcare facilities, universities
and colleges, and volunteer, part-paid and paid fire protection and hazardous material
response districts. All of these facilities are dependent to varying degrees on planning
and response agencies and activities affected by the proposed Information Collection
Activities. I further serve in a volunteer capacity as a member of the Local Emergency
Planning Committee (LEPC), a director for a major fire protection district located just
west of Denver, and a director for a moderate-sized water and sanitation district. Within
these various roles I have frequent opportunity to apply and be impacted by Federal,
State and local regulations and funding, such as that provided by HMEP, and serve as a
fiduciary of taxpayer resources.
Within the scope of my professional and civic experience I find the proposed HMEP
requirements to be generally unnecessary, frequently redundant, and burdensome.
Specific comments have been provided in responses submitted separately by the
National Association of SARA Title Ill Program Officials (NASTTPO), the Colorado
Emergency Planning Commission (CEPC), and the Jefferson County LEPC. I
wholeheartedly concur with those comments and recommended they be seriously
considered and incorporated. Particularly relevant in those comments is the need to
maintain the plan-train-exercise continuum, a need that the proposed activities do not
recognize or support.
Some level of bureaucratic structures and processes are necessary in complex
societies, however the proposed level and type of information collection is unnecessary
and wasteful. As the creator of a few bureaucratic processes myself, I can emphatically
state that the public interest and well-being is not well served by this proposal.
Sincerely,
Randall J. McConnell

General Comment:-There i s a c y c l e t o community preparedness.
p l anni n g - t r a i n i nge x e r c i s e s . YOU c a n ' t do one w i t h o u t t h e o t h e r s .

That c y c l e i s

-YOU cannot judge t h e value o f any one piece w i t h o u t understanding how LEPCS
use money f o r t h e e n t i r e c y c l e .

-PHMSA has focused on measuring a t t r i b u t e s t h a t , w h i l e easy t o count, f a i l t o
a c t u a l l y address t h e important aspects o f how l o c a l agencies use HMEP
monies .

- T r a i n i n g i s p o i n t l e s s w i t h o u t a p l a n t o t r a i n a g a i n s t and exercises t o measure
whether t r a i n i ng has covered necessary s k i 11s . planning is p o i n t l ess w i t h o u t
e x e r c i s e s t o t e s t t h e p l a n and t h e l e v e l o f t r a i n i n g . Exercises a r e p o i n t l e s s
unless
t h e y t e s t p l a n n i n g and s k i 11s 1earned through t r a i n i n g .

Page 1

General Comment :As a person w i t h a s u b s t a n t i a l amount o f e x e r c i s e experience i n t h i s
field, I
concur w i t h t h e comments provided by t h e colorado Emergency planning commi ssion
and t h e l e f f e r s o n County ~ o c a lEmergency planning Committee.

Page 1

Comment I n f o : =================
General Comment:Please see attachment f o r response t o above a c t i o n .

Page 1

Office of Management and Budget
Attn: Desk Officer for PHMSA
725 17th Street, N.W.
Washington, DC 20503

Re: Comments to Docket No. PHMSA-2007-27181 (Notice No. 07-10)

December 5, 2007

Dear PHMSA:

I n response to Docket No. PHMSA-2007-27181, Collection
Activities.
We appreciate this opportunity to comment. The Colorado Emergency Planning
Commission (CEPC) is the "SERC" for Colorado under the Emergency Planning
and Community Right-to-Know Act as well as performing additional duties
under state law. I n this role we work with local emergency planning
committees, first response organizations, facilities, and the puMic
regarding emergency planning, response and community right-to-know. We have
been activelv involved in im~lementationof the Emeraencv Plannina and
Community Kight-TO-KnowAct since its inception. W
; work extensively with
local emergency planning committees both in Colorado and throughout EPA
Region VIII.

We are totally dependant on HMEP funding distributed through the states to
support our planning, training and exercise activities through the LEPCs and
first responder training through other state agencies and volunteer
instructors. The burdens proposed by the current notice will fall on
organizations that are the users of the funding. These burdens are not
trivial. The LEPC organizations are volunteer groups. Devoting time and
energy to reports detracts from their other very important missions.

(1) Whether the proposed collection of information is necessary for the
proper performance of the functions of the Department, including whether the
information will have practical utility.

The inclusion of the proposed questions in the HMEP grant application is not
necessary for the proper performance of the Department. PHMSA states that
the information requested will provide data to evaluate emergency response
planning and training programs conducted by States and Indian tribes as well
as summarize the achievements of the HMEP grant program. PHMSA further
states the information sought will enhance emergency response preparedness
and response by allowing PHMSA and its State and tribal partners to target
gaps in current planning and training efforts and focus on strategies that
have been proven to be effective. However, given the objectives of the
grant program and the information the Secretary currently collects under
this program, the proposed questions are unnecessary to these stated
purposes thus do not have practical utility. The proposed questions do not
further assist the Secretary to determine whether the State or tribe's

activities are eligible for funding, the Secretary's function under the grant program.
See 49 C.F.R. 5 110.40. Also, the proposed questions do not further assist the Secretary
to comply with the reporting duties under Section 5116(k). See 49 U.S.C. 5 5116(k).

The purpose of the Hazardous Materials Transportation Act (HMTA) is the
provision of 'adequate protection against the risks to life and property
inherent in the transportation of hazardous material in commerce." Section
5101. And, the purpose of the Hazardous Materials Public Sector Training
and Planning Grants Program is to support "the emergency planning and
training efforts of States, Indian tribes, and local communities to deal
with hazardous materials emergencies, particularly those involving
transportation," and to enhance the implementation of the Emergency Planning
and Community Right-To-Know A d (42 U.S.C. 11001). Section 110.1. Grant
applicants are currently required to provide project narrative statements,
budget information, statements of work, financial reports, audits, and
performance reports. See Sections 110.30, 110.70, 110.90.
The proposed information collection duplicates these efforts. LPECs should
not be required to use their valuable time and decrease community
preparedness, contrary to the HMTA's purpose and objectives, to assemble
information PHMSA already collects. Further, as many commenters' have
noted, PHMSA has failed to provide a clear rational for the collection of
this additional information, data collection for the sake of data collection
is unreasonable.

I n addition, as stated in previous comment letters, the overall intent of
the grant program in the HMTA is one of leniency so as to allow States and
tribes to engage in a wide variety of administrative activities, research,
and field work directed toward the safe transport of hazardous materials. A
more narrow interpretation, signified by the specificity of the proposed
questions, defeats the overall purpose of the grant program by restricting
the flow of money to activities the State or tribe considers necessary to
the safe transportation of hazardous materials through its jurisdiction.

Moreover, if the Secretaries of Transportation, Labor, and Energy, Directors
of the Federal Emergency Management Agency and National Institute of
Environmental Health Sciences, Chairman of the Nuclear Regulatory
Commission, and Administrator of the Environmental Protection Agency must
periodically review all emergency response and preparedness training
programs of that department, agency, or instrumentality to minimize
duplication of effort and expense of the department, agency, or
instrumentality in carrying out the programs, the Secretary of
Transportation should similarly work to minimize duplication of effort and
expense of State emergency response commissions. See Section 5116(h).

Beyond the general flaws expressed, the subsections below dixuss
specifically how the proposed questions duplicate information currently
collected under the HMTA and grant program.

A.

Fees

First, PHMSA proposes to revise the information collected concerning State
or tribe imposed fees related to the transportation of hazardous materials.
Under Section 5125(g)(1), States and tribes are permitted to impose fees
related to the transportation of hazardous materials if the fee is fair and
used for a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for

emergency response. Further under Section 5125(g)(2), the Secretary may
request information on the basis on which such fee is levied, the purpose
for which the revenues are used, the annual total amount collected, and
other such matters as the Secretary requests. Currently, States and tribes
are required to provide in their grant applications a written statement
explaining whether the applicant assesses and collects fees on the
transportation of hazardous materials and whether the fees are used solely
to carry out purposes related to the transportation of hazardous materials.
Section 110.30(a)(4).

While the Secretary is authorized under Section 5125(g)(2) to request more
detailed information about such fees than currently requested, some of the
additional proposed questions do not aaist the Secretary's determination of
whether fees are fair and used for a purpose related to transporting
hazardous material. For example, asking what state agency administers the
fee and whether company size is considered when assessing the fee does not
aid in the determination of whether the fee is fair and used for a purpose
related to transporting hazardous material. See proposed questions 2a and
2c. This information is unrelated to the purpose of the fees thus is
unnecessary and does not have practical utility.

8.

Planning Grants

Second, PHMSA proposes to revise the current information collection
concerning planning grants. PHMSA states the revised information collection
will enable PHMSA to more accurately evaluate the effectiveness of the grant
program in meeting emergency response planning needs.

The proposed planning questions are duplicative of information currently
collected in the grant application and performance reports. PHMSA proposed
question 1asks what amount of planning grant funds was used to assist LEPCs
and the number of LEPCs assisted. However, Section 5116(a)(2) only requires
the State agree to make at least 75 percent of a planning grant available to
LEPCs and Section 110.30(b)(3) requires a written statement of that
agreement in addition to an explanation of how the State intends to make
such funds available. Furthermore, Section 110.70(a)(l) requires the State
to conduct fiscal control and accounting procedures sufficient to permit
tracing of funds provided for planning to a level of expenditure adequate to
establish that at least 75 percent of planning funds were made available to
LEPCs. This information currently provided by grant applicants allows PHMSA
to determine that the State made at least 75 percent of the planning grant
available to LEPCs, as required by the HMTA. See Section 5116(a).

Furthermore, the proposed questions la-e are also duplicative
and unnecessary. Under Section 110,30(b)(l), State grant applicants must
submit a statement that the State is complying with the Emergency Planning
and Community Right-To-Know Act. Under this Act, LEPCs are required to
complete preparation of an emergency plan and review the plan at least once
a year. 42 U.S.C. 3 11003(a). Further, LEPCs must evaluate the need for
resources necessary to develop, implement, and exercise the emergency plan.
Section 11003(b). L E U must also include in the emergency plan information
on notification, evacuation plans, training programs, and methods and
schedules for exercising the emergency plan. Section 11003(c). Thus,
question l b is unnecessary because LEPCs must review their emergency
response plans annually; question l c is unnecessary because LEPCs are
required to develop emergency plans; question I d is unnecessary because
LEPCs addrea training programs and exercises in their emergency response
plans; and question l e requests a level of detail, as do questions la-d,
that has no practical utility so long as a State makes at least 75 percent

of planning grant funds available to LEPCs, as statutorily required.

I n addition, proposed question 2 is unnecessary because States
and tribes already provide the requested information and the additional
level of detail proposed will not further assist PHMSA's evaluation of the
effectiveness of the planning grant program. The grant application requires
the applicant provide a project narrative statement of the goals and
objectives of each proposed project including: the current abilities of the
applicanrs program for preparedness response; the need to sustain or
increase the program; the current participation or intention to assess the
need for a regional team; the impact the grant will have on the program;
whether the program knows or intends to assess transportation flow patterns;
a schedule for implementing the proposed grant activities; and a description
of how the program will be monitored. Section 110.30(b)(5). The grant
application also requires a statement of work in support of the proposed
project describing and prioritizing the activities and tasks to be
conducted, the costs associated with each activity, and a schedule for
implementation. Section 110.30(a)(7). And, applicants are required to
submit performance reports for planning grants including comparisons of
actual accomplishments to the stated goals and objectives. Section
110.90(b)(2). Therefore, the information in proposed questions la-e is
already provided in the grant application and performance reports.
Moreover, applicants are required to provide detailed budget information in
Standard Forms 269, 270, and 424A, as required by Sections 18.41(b),
110.90(b)(4), and 110.30(a). Thus, the breakdown of fund usage requested in
the proposed questions is unnecessary and has no practical utility due to
the provision of budget information by States and tribes in the grant
applications, performance reports, and budget forms.

Lastly, the requested information in proposed question 3 is also
provided in the grant application project narrative, as stated above.
Section 110.30. Therefore, such information collection is unnecessary.

C.

Training Grants

Third, PHMSA proposes to revise the current information
collection concerning training grants. PHMSA states the revised information
collection will enable PHMSA to more accurately evaluate the effectiveness
of the grant program in meeting emergency response training needs.

The proposed training questions are duplicative of information currently
collected under the grant application and performance remrts; thus are
unnecessary. First, section 110.30(~)(5)requires grant applicants provide
a project narrative of the goals and objectives of each proposed project
.
.
including: a description ofthe current hazardous materialstraining
programs; the training audience; the estimated total number of persons to be
trained; the ways in which the training grants will support the training
program; a description of how the training will be monitored; and a schedule
for implementing the proposed training grant activities. Second, Section
110.90(b)(2) requires project managers to submit a performance report that
includes a comparison of actual accomplishments to the stated goals and
objectives. Therefore, the proposed questions la, lb, and l e are
unnecessary because grant applicants provide the requested information in
and ~erformanceremrts. Furthermore. as stated in
the arant a~~lication
response to the planning questions above, grant applicants are required to
provide detailed budset information in Standard Forms 269, 270, and 424A, as
required by ~ectionsl8.4l(b), 110.90(b)(4), and 110.30(aj; thus, the
detailed breakdown of fund usage requested in the proposed questions is
unnecessary and has no practical utility due to the provision of budget

information by States and tribes in the grant applications, performance
reports, and budget forms.

I n addition, questions l c and 1.d are unnecessary because the HMTA only
requires a State or tribe certify that the total amount the State or tribe
expends to train public sector employees will equal at least the average
level of expenditure for the last two fiscal years, that the State or tribe
will use a training course identified under Section 5115 or another course
the Secretary determined consistent, and that a State agrees to make at
least 75 percent of the grant available for training public sector
employees. Section 5116(b). The statute also lists the possible uses of
the training grant including tuition, travel, room and board, and use by the
State or tribe to provide training. Section 5116(b)(3). The proposed
questions l c and I d do not have practical utility in assisting PHMSA to
determine the effectiveness of the training grant program because such
specificity is not required by the HMTA and does not assist the Secretary in
carrying out the broad objectives of the training grant program. I n
addition, the proposed questions do not provide additional information,
beyond that already collected, which outweighs the burden of collecting such
information; therefore these questions are unnecessary.

Furthermore, proposed question 2 is duplicative and unnecessary. Grant
applicants currently describe their monitoring systems for their training
programs in Section 110.30(~)(5)(iii). I n addition, States must provide a
written certification explaining how the State is complying with sections
301 and 303 of the Emergency Planning and Community Right-To-Know Act, which
requires a State to establish State Emergency Response Commissions, Local
Emergency Planning Committees, and emergency planning districts. See
Section 11001. Therefore, the information requested in proposed question 2
is currently provided in the grant application and the question is
unnecessary.

Lastly, the requested information in proposed question 3 is also provided in
the grant application project narrative, as stated above. Section 110.30.
Therefore, such information collection is unnecessary.

(2) The accuracy of the Department's estimate of the burden of the proposed
information collection.

PHMSA has underestimatedthe burden and impact of the proposed
information collection. Hazardous materials pose a daily hazard to the
people and the environment of Colorado; for example, the Department of
Public Health and Environment recorded 2,431 reported spills during
2002-2005,993 at fixed facilities. See State of Colorado Emergency
Operations Plan - 2007, 26 available at
h ~ ~ d o l a . c o ! . o r a ddem~~.ub!icati~~.slsf?o~!
~vl
...2!207...pdf. The proposed
information collection will unnecessarily take valuable time from the
individuals volunteering to protect Colorado citizens from these hazards.

PHMSA states that it appreciates concerns about additional burden detracting
from grantees planning and training efforts but believes the more detail
information requested should be readily available due to the current data
collection. However, PHMSA fails to consider the true difference between
the general statements concerning the breakdown of grant administration and
the minute detailed calculations requested in the proposed collection. The

precise amount and percentages calculations proposed will be very burdensome
on the majority of communities, particularly since most communities
administer their programs using volunteers. Colorado has 63 LEPCs, the
majority of which function without a budget or with only a small amount of
money granted from the State Emergency Planning Commission. The use of such
volunteers' already limited time will detract from community preparedness,
contrary to the statutory objectives of the HMTA and the grant program.

Further, PHMSA increased the burden of the proposed information
collection on applicants by the inclusion of unnecessary questions, as
discussed above. PHMSA should delete the questions that are unrelated to
the objectives of the HMTA, such as the fees questions 2a and 2c. PHMSA
should also delete the proposed questions collecting information currently
submitted in the grant applications, budget forms, and performance reports.
The burden on applicants to compile assess information already provided to
PHMSA is unnecessary and detracts from efforts spent on community response
and preparedness activities.

Moreover, PHMSA fails to recognize the continuity of the
planning and training activities conducted under the grant program. The
planning activities consist of numerous connected parts that are virtually
impossible to separate out dollar for dollar. Similarly, the training
activities are a continuum of planning, training, and exercises. Requiring
individual dollar assessments of each phase of these programs is
unreasonable due to the continuity of these programs. For example, some
LEPCs in Colorado are organized within the offices of a first response
agency or local government office of emergency management. See The
Practical Evaluation of Local Emergency Planning and Preparedness available
I n these situations, the
at htt~://www.qcallc.com/LEPC~/02OWhite~/02OPa~er.pdf.
functions of the agency and the LEPC are complementary and impracticable to
tease apart at the level in the proposed questions. Further, PHMSA has not
clearly stated the necessity of the proposed level of micromanagement.
Without a clear purpose for the proposed level of detailed itemization and
because of the heavy burden providing such detail will place on grant
applicants, the proposed information collection is unnecessary and
unreasonable.

(3) Ways to enhance the quality, utility, and clarity of the information to
be collected; and (4) ways to minimize the burden of the collection of
information on respondents, including the use of automated collection
techniques or other forms of information technology.

As discussed above, the proposed information collection is
unnecessary and has no practical utility due to the information currently
provided by grant applicants in the grant applications, budget forms, and
performance reports. However, if PHMSA must go forward with the proposed
information collection, the burden on applicants can be reduced by deleting
questions requesting information collected elsewhere and questions unrelated
to the objectives of the HMTA and the regulation. Requiring applicants to
use their valuable and limited time to duplicate reporting efforts currently
conducted and assess information already available to PHMSA instead of
focusing on community response and preparedness is contrary to the
objectives of the HMTA and the grant program.

I n addition, requiring applicants to provide the detailed
calculations in the proposed questions is an unreasonable burden, also
discussed above. I f PHMSA must collect this in-depth level of information,

PHMSA should create an automated questionnaire that utilizes a multiple
choice questionlanswer format. The automated questionnaire should begin
with a yeslno question to determine general applicability and allow
applicants to opt out of the question if it does not apply. The automated
questionnaire should then allow applicants to estimate and choose answers
from proposed choices, representing a grant applicant's general knowledge of
the state program. For example, answers might give numerical ranges
representing percentages, monetary amounts, or number of times a specific
exercise was undertaken. Also, questions that direct the applicant to make
written descriptions of grant moneys should be reformatted into a multiple
choice style. The automated questionnaire can provide a space for
additional comments at the end of each section should an applicant
affirmatively choose to take on an additional time burden.

Conclusion
I n conclusion, the proposed information collection should not go
forward because it is not necessary for the proper performance of the
Department and PHMSA has not clearly expressed the practical utility and
purpose of the additional information. I n addition, PHMSA failed to respond
to concerns previously expressed and actually increased the reporting burden
on grant applicants. Most importantly, PHMSA fails to recognize the
continuity of the planning and grant program and would actually reduce
community preparedness, contrary to the purpose of the HMTA and grant
program, due to PHMSA's misapplied reporting emphasis and the unnecessary
use of the grant applicant's time and effom.
Using the published data of the OMB estimate of 5,428 hrslannum, more than two (2) full F E s
would need to be hired in Colorado just to handle the reporting requirements.
I f this is the case, the State of Colorado will have to review it's participation in the HMEP Grant
Program.

Sincerely,

Jack Cobb
Greg Stasinos
Co-Chairs
Colorado Emergency Planning Commission

General C0mment:To t h e PHMSA:
Iam

a Board member f o r our l o c a l / c o u n t y LEPC. Iam sending t h i s i n accordance
and i n agreement o f our board w i t h t h e i r foreknowledge and approval. The pending
l e g i s l a t i o n f o r t h e HMEP r a n t would prove an undue and unnecessary
h a r d s h i p f o r t h e LEPC'S t E a t b e n e f i t from t h i s g r a n t . our County LEPC c u r r e n t l y
r e c e i v e s a $2000.00 g r a n t from t h e Oklahoma Emergency Management Agency
(OEM) f o r p l a n n i n
T h i s g r a n t i s made a v a i l a b l e t o us as p a r t o f t h e HMEP g r a n t
t o t h e s t a t e o f o iahoma.

!

we r e c i eve t h i s f u n d i n g o n l y by completing and m a i n t a i n i n g t h e o r g a n i z a t i o n a l
requirements and exercises t h a t a r e c u r r e n t l y i n - p l a c e and these a r e recorded and
monitored by sending i n q u a r t e r l y r e o r t s w i t h v e r i f i c a t i o n s and a d d i t i o n a l
dpcumentation and standard forms. T i s i n c l u d e s b u t i s n o t l i m i t e d t o 24 hour
access, communit outreach, annual d r i l l s , T i e r I I : c o l l e c t i o n ; storage; reference;
24 access and o t e r elements associated w i t h HaZMat i n f o r m a t i o n and s a f e t y .
The g r a n t f u n d i n g i s o n l y released i n p a r t s a f t e r completion and t h e meeting o f t h e
s t a t e ' s requirements. Iwould l i k e t o remind t h i s body these a r e t h e g r a n t
requirements, n o t what has t o be done i n an a c t u a l event. I n t h a t case, we can
immediately add hours and o r days f o r responding, t h e r e q u i r e d a c t i v i t i e s ,
m o n i t o r i n g , cleaning-up and a f t e r - a c t i o n events, s a f e t y issues and r e p o r t s .

I:

x

our LEPC i s i n d i c a t i v e o f a l l LEPC'S. I t i s a v o l u n t e e r program which a l s o
i n c o r p o r a t e s unpaid p r o f e s s i o n a l s , who v o l u n t e e r t h e i r time, e f f o r t and resources i n
o r d e r t o have an LEPC i n our communities and j u r i s d i c t i o n s . -rhe money a l l o t t e d
i s needed and u t i l i z e d f o r t h i s o b j e c t i v e b u t doesn't cover t h e c o s t i n human
resources, personnel and needed a d d i t i o n a l resources, t i m e and c o s t s . our LEPC
group i s p o s s i b l y more unique i n t h a t i t covers a l a r g e area b u t has l i m i t e d
resources t o draw upon due t o l i m i t e d o p u l a t i o n and d i s t a n c e from o u t s i d e
assistance. we a r e dependent upon eac o t h e r and our c l o s e s t neighbors w i t h o r
w i t h o u t any funding o r a d d i t i o n a l support from o u t s i d e sources. Your f u n d i n g
p r o v i d e s f o r us t o have access t o t r a i n i n g and o r resources t h a t might n o t be
r e a d i l y a v a i l a b l e o r a f f o r d a b l e . ~ta l s o helps s u s t a i n and m a i n t a i n our
organization
b u t i t d o e s n ' t n e c e s s a r i l y "keep i t a l i v e " . we do f o l l o w t h e e x i s t i n g format i n our

I:

meetings, t r a i n i n g s and requirements. The m a ' o r i t y o f our members have taken
t h e r e q u i r e d N I M S t r a i n i n g and continue t o t a e a d d i t i o n a l courses, e i t h e r o n - l i n e
o r as i n s t r u c t o r s become a v a i l a b l e . once again t h i s i s on t h e i n d i v i d u a l ' s time,
w i t h t h e i r e f f o r t and a t t h e i r c o s t f o r t h e most p a r t . TO t r y and break down every
minute should be considered an undue hardship and f r a n k l y unworthy o f t h e
p a r t i c i p a n t s and t h e i r e f f o r t s f o r t h e LEPC o r g a n i z a t i o n t o e x i s t and p o s s i b l y
s u r v i v e . Imust re-emphasize e v e r y t h i n g i s appreciated b u t t o add more t o an
a1 ready burdened and s t r a i n e d membership load-addi t i o n a l d u t i e s , i n a p u r e l y
v o l u n t e e r o r g a n i z a t i o n i s w i t h o u t m e r i t and d e t r a c t s r a t h e r than adds t o i t s
efficiency.

$

we had a f u l l s c a l e a c t i v a t i o n t h i s p a s t summer i n a m i s s i n person event.
People who were t r a i n e d i n t h e Nims/ICs s t r u c t u r e advised t a t i t was one of t h e
b e s t r u n examples o f t h i s s t r u c t u r e t h a t t h e y had seen and confirmed i t s
e f f e c t i v e n e s s i n a c t i o n , n o t o n l y t h e o r y . ~twas due t o t h e previous t r a i n i n g
a1 ready
i n p l a c e t h a t we, as an o r a n i z a t i o n were a b l e t o implement and e f f i c a t e t h i s i n a
1i v e a c t i o n . Another exam ye Iwould 1ike t o express i s t h a t we had a tab!etop
e x e r c i s e l e s s t h a n a mont ago. ~twas w e l l attended and a c t i v e l y p a r t i c i p a t e d i n .
Those t h a t c o u l d n ' t a t t e n d weren't t h e r e , because t h e y c o u l d n ' t t a k e o f f from t h e i r
'obs. T h i s was l a r g e l y due t o having fought a rass f i r e a few days p r i o r and
iecause so many people i n s m a l l e r communities ave so many o t h e r v o l u n t e e r
Page 1

E

I:

E

~~~SA-2007-27181-0032[1]
d u t i e s t h a t one i s c o n s t a n t l y having t o "catch up" w i t h t h e i r s a l a r i e d p o s i t i o n s
when t h e r e i s an a c t u a l event. I hope t h a t t h i s i s a case i n p o i n t . we have people
who a r e u s i n g
This i s a t the
- t h e i r v a c a t i o n t i m e t o t r y t o a t t e n d t r a i n i n g- s .
expense
and w i t h t h e compliance o f t h e i r work, a f f e c t i n t h e i r income/resources and
maybe, most i m p o r t a n t l y , t h e i r time w i t h t h e i r a m i l i e s . They a r e g i v i n g enoughd o n ' t be p a r t o f t h e process t h a t places t h e "straw t h a t breaks t h e camels back".
we a r e o u t " t h e r e " o r "here" doing t h i s-on c a l l 24/7 m a i n t a i n i n g standards t h a t we
a r e u t i l i z i n g and implementing f o r t h e good o f our f a m i l i e s and communities
e f f e c t i v e l y . we a r e i n compliance w i t h s t a t e and n a t i o n a l standards. what more
do we have t o do .... what more do we have t o prove.

?

Thank you f o r
us a format i n which t o speak and h o p e f u l l y c o n t r i b u t e t o t h i s
process from t evio t e r end o f t h e spectrum.

gi

Sincerely,
K e i t h shadden
Board Member
Beaver county LEPC

Page 2

PHMSA-2OO7-27181-OO31 [I]

General C0mment:At t h e December 7, 2007 meeting o f t h e c l e v e l a n d County Local
Emergency
P l a n n i n g Committee, t h e proposed changes t o t h e Hazardous M a t e r i a l s
Emergency Preparedness g r a n t program were discussed and t h e committee v o t e d
unanimously t o a u t h o r i z e t h e e x e c u t i v e board t o f o r m u l a t e and s i g n t h e a t t a c h e d
comment l e t t e r . Please accept t h e attachment as t h e consensous o f our
commi t t e e and t a k e i n t o c o n s i d e r a t i o n our concerns when making your deci s s i on.
Thank you.

Page 1

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1-7

December 7,2007

Pipeline and Hazardous Materials Safety Administration
Attention T. Glenn Foster, PHH-I
1200New Jersey Avenue, SE., East Building, 2"dFloor
Washington, DC 20590-0001
RE: [Docket No. PHMSA-2007-27181 (Notice No. 07-10)]
Information Collertion Activities

Dear Mr.Foster,
As Chairman of the Pawnee County Local Emergency Management Committee (LEPC) I am greatly
concerned of the proposed rule to increase the reporting burden upon the recipients of the Hazard
Materials Emergency Preparedness grant (HMEP) program, The Pawnee County LEPC is cunently
a recipient of $2,000 per year from the Oklahoma Emergency Management (OEM) for Chemical
Hazard planning and preparedness activities as part of the WMEP grant to the State of (lklahoma.
Conditions for the receiving the HMEP assistance through the OEM include;certification,
demonstration, and reporting of all E F G activities as required under EPCRA. These activities
include preparation and updating of Pawnee County Chemical E h q e n c y Prepredness Plans,
conducting an artnual exercise using the plan, maintaining a 24/7 Hazevdous Chemical incident
reporting number, wndueting annual Hazardous Chemical inventories within Pawaee County,
collecting, processing and issuing Tier I1 reports to the local Emergency Responders and their
perspective communities or jurisdictions. These activities are reported at minimum two time&per
year to the OEM.
Pawnee County is located in rural Oklahoma with predorninarlt land use being agriculture and oil
and gas production. Emergency responders within Pawnee County consist primarily of thkIeen rural
volunteer fire departments, one Tribal (Pawnee Nation) fire department, and the Pawnee County
Sherriff Office. Resources (man, money, and equipment) are limited. Pawnee County has a
significant Hazardous Materials Inventory at boih fixed facilities and through the many
transportation corridors (air, railroad, pipeline, and aver the road) throughout the County. Incident
involving hazardous chemical on any one of the venues occur f k m time to time. The LEPC has
been able to provide Certified Haanat training to its volunteer firefighters in and around Pawnee
County. It is only through the efforts of the Pawnee County LEPC and its participants that we can
plan, train for, and effectively (and safely) respond to and manage these incidents involving
Hazardous Chemical.

The Pawnee County LEPC is spending over $5,000 per y e a in human resources to administer the
program now. Volunteer resources spent far exceed $20,005 per year when considering the actual
planning, training, and response time of the emergency responders annually. V?ha you conduct an

exercise, you can estimate an&
planning implementation, &

$3,000 to $5,000 ofdand volmttxr a ~ %
afthe exmi%.

As you can clearly see,

Emeqency P
R
~
under the bdiag level.
additional reporting burden
bwden of e&tiveIy admini
fsr m a y counties such as Pawnee County wr083 the country wi&&wi.e; its padioipation under .the
LEPC aMi HMEP p r a m .

of human life and

Emergencies.

to a level t ? ~
The State

administrationand associated mparthg east, These efforts are d t i n g g ia incraw W E P pqpm
participation, Additional mpmin$ requirements me redumht iJncl will effestivdy work toward
"undoing" the acwmplishments that the State and counties have miid@under the NMEP program.

The Pawnee County LEPC is asking, thsrt PWMSA withdraw the proposal infamtiion calIection mle
and strongly cansiclet in
funding for swh WMEP inidsaiva,
Cordially,

~ o r r t jMatlock,
r
Chait
Pawnee County LEPC
Contact Information:

Parnee County L E E
500 Ileurison, Room 202
Pawn=, Oklahoma 74058

Phone: 918.762.3655
Email:

Pipetitie and H a d a m Ma&&% S d q Abs~histaEltion

Ohr L E K i s ma& up sf volwitecrs; wa dl have*. other jobs and struggle to fmd the time to ctesote to
planning and preparing for chemical accidents. We have people on t
k wrrmmitke from locd busi~iess
(this work is not ti part of M
i profit line), other nonp~ofrto m i z a t i m , volunwr fire departments, and
other state and iwd g ~ v e m i n organdiaas.
d
hvolvement in the LEPC takes time away h m our
other respul~sibiiitiesbut we all believe in what we an:doing through the LEW.

'Fhere are not v e y my fix& &iiiec b i c s t f m

u

or u r n in sanr

to our efforts to plan

wih&fhr~wIhtheir midptiw in $he LEPC,

bn indus$y on the 0th

~ qm
t kiptc:an s wgalar b i s in plmning ar pwpiaag

ied *if1 in ow cuun
m d m that h BNSF mil
On h&
supply some trtrining far wr ctmeww mspo&w Wi* in tlw
the LEPC &at atpupplid ths facilities for thaw mhing @ventsiana it was the tnt-sglrdyW@ rwiv@L?B
0,bm~g~~
the W M E P p t f h a t enabled ustomtthefaeitit-im,

Residw the mIrailr;ar uaixli~,the L E E %amv n t MMEP grant maaey &I e ~ n dp p b b t work in the
md w o r k s h ~fat the
paid fm a few of our
T
Ceat~r,Inlac, a wmgd GI&is shrxr1

is

h t zae c4smmitwd tap

We hwe dm

Special N d s -in% fm hwinesm, ~ i v m
and nsn-pmd&md o h m in (Irre
up after the mgic
people who have s p i a l needs. This was tm i i g g ~ ethat
emwgency response effon -sen fallowingg btrkm. We tmve apcmsad several a&
emesmcy mp6bnders both pmfcsssid d woluateers. We hwe an active p w p of el
W58f~m w ~ p would be
in a djrmt; 'uk%oa &dr %omsof
fuwtisning. We B e 1 & is vitaity im
to k e p tbae goup ~ppaa-dat~:
m mining attd lhant is w*
we have tried w focus CPW
limit& MB.
These WE aJ1 p q s &at muld IM calk! ktsge~sia a -pons to a
tmspartatlon mident hvo1ryinga c h i e a l spill.

coznmunit.5. th

we subinit to OEM to document ~lndattest to proper use of oiec
h d s , our account is subject ta
a d i t by an Burtride entity. The LEK's funds are kept in an account
administered by the Clmrvelsnd C m t y T ~ e a s m r ' soffice. As such t h y are subject to rn annual audit;
one m o e way in which you am assured ofour good smmrdshig of the grant money.
In addition to the semiannual reports

sw
e ~ l f h v @ W : , f i s x iM@mmdain

& md

will just cat it&&the time

make sense,

their time m m m
would make it very
need ~s
hire wmone & 4j0 this. Could we e x p t some adclirid
m
t

money.

SeFStIL

01r

sac

adaytot"tl~&&e
tnkling it ta &a
approprlm pftifss, a n most of ahis anmt be dow a&n bdf way h m ~ the
h yssnr. While we m e ahisle

a~ e&imatt:ofthe time wxaired for these hnctims we do
the indepenhnt auditor's time it tmk to =view the
quimetrts
belarg maintainedand mat ampfiatpsty,
to give ym'rt:

cji

my idm bow muck ~f
in@t h i the hne3.swem

And ia the end, WM
w@Idait this extm iaafm~timcoll4aw aow~p%i*;wthiaJg $bat wr: m tell.
From our wsp-We
shwU ief beable fa d
fwm Phe carmxrt:
the e.pf~$ivr:~~a%s
of the
prapnl.
hauQ
g fw the* RmnBz3 wwl
he s m e pef~rtthe p t w e ~
a$'Wng,an
&&
we would jusg have to h g o them. We
this be tSnes csut~om~f ahis
~1 k
6 if sure look ta w ilk@vrsh~t%i~
inmdeAi ar not th& will be the

outcame.

General Comment:I am a t t a c h i n g comments i n opposition o f t h e proposed r u l e on b e h a l f
o f the
Oklahoma Hazardous M a t e r i a l s Emergency Response Commission.

Page 1

OKLAHOMA HAZARDOUS MATERIALS
EMERGENCY RESPONSE COMMISSION

Comments to Docket No. PHMSA-2007-27181 (Notice No. 07-10)
Information Collection Activity Notice of Rulemaking
Dear PHMSA;
As Chair of the Oklahoma Hazardous Materials Emergency Response Commission,
(OHMERC), I want to thank you once again for the opportunity to comment in
opposition to a proposed rule which will increase the reporting burden for first responder
volunteers in Oklahoma. Oklahoma has commented on two other occasions in opposition
to the proposed addition of non-essential information collection and the state remains
opposed to this activity.
The OHMERC is composed of representatives from the Oklahoma Department of
Environmental Quality, the Oklahoma Emergency Management Agency, the Oklahoma
Department of Public Safety, the Oklahoma State Fire Marshall, the Oklahoma Office of
Homeland Security, local emergency responders and the regulated community. The
Commission works to assist Oklahomans in preparation for possible emergencies and
disasters involving hazardous materials, whether they are accidental releases or result
from terrorist acts. The Commission oversees the distribution of HMEP grants to Local
Emergency Planning Committees (LEPC) specifically for planning for hazardous
materials incidents and for training of local responders. The majority of local fire
departments in Oklahoma are volunteer departments, the only hazardous materials
training available to them is the training provided by HMEP funding. The rural,
volunteer fire departments are expected to respond to transportation incidents throughout
the state. Additionally, HMEP grants to LEPCs for planning are the major source of
funding for emergency planning in Oklahoma. Only active LEPCs which demonstrate
compliance with the Emergency Planning and Community Right-to-Know Act are
eligible to receive these small $2,000 grants.
Local emergency responders and planning committees are almost entirely dependant on
HMEP funding distributed through the state. The burdens proposed by the current notice
will fall on not just state agencies. Rather, it will fall primarily on local organizations
that are users of the funding. These burdens are not trivial. All LEPCs and most of our
rural fire departments are volunteer groups.

As previously noted, the OHMERC believes this rule to be unnecessary because HMEP
grantees are already required to provide an accounting of funding to PHMSA. For
example, currently Oklahoma receives $188,028.00 from the HMEP grant, but we are
required to provide a 20% match making the grant total $235,036.00. The 20% match is
provided with in-kind man-hours from OSU training and LEPC assistance provided inperson. Currently $92,000 is provided to OSU Fire Training for local hazmat classes and
ICS classes. This year, 2 1 LEPCs have been granted $2,000 each for a total of $42,000.
In order to get the funding, LEPCs must update their emergency plan, exercise the plan,
maintain a 2417 telephone number for spill reporting, conduct community outreach, have
regular meetings, have a procedure to
Tier 11information on request, and track
hazmat incidents. Reports are required semi-annually from LEPCs and money is granted
semi-annually after verification of activities. Administratively, $53,000.00 goes to one
FTE at OEM who is responsible for the grant and the state-wide emergency operations
plan. Additionally, $1028.00 is set aside for travel to attend training. The OHMERC
quarterly receives list of all hazmat or ICS classes conducted using HMEP grant money
along with the number of students in each class. The OHMERC is also given an update
on the progress of each grant funded LEPC is making in meeting accountabilities.1 n
summary, the money is used effectively with full acciuntabilityr DOT already has a
break down of where the grant money goes. The following is the informatioialready

All HMEP grantees provide a similar accounting of expenditures of HMEP funds.
Therefore further information collection is unnecessary and burdensome.
Further, PHMSA has failed to provide a good rational for the collection of this additional
information. We do not believe that DOTPHMSA should impose the burden of
information collection without a clear plan and purpose to use the information in a
fashion that comports with statute and regulation. Until and unless DOTPHMSA is clear

in its plans for the use of the information it appears that the proposed collection activity is
simply an increased burden without a purpose.
The proposed rule includes three sections of additional reporting burden. Each section
has basic flaws beyond the general flaws in rational already expressed. The first section
would require grantees to research and report extensively on possible fees imposed on the
hazardous materials transportation industry by some other agencies for some other
purpose. None of the agencies represented on the OHMERC imposes fees on the
hazardous materials transportation industry. No other fees in the state of Oklahoma are
used for training for response to hazardous materials incidents or for planning for such
incidents. It is unreasonable to suggest the OHMERC or member agency embark on a
fishing expedition in the state to see if the industry is being charged a fee for some
agency for some purpose. If PHMSA feels this information is important, DOT has the
means to gather that information. In all likelihood, if such a fee is charged, it will be
charged by a state Department of Transportation. Clearly US DOT has the contacts in
place to gather that information. If US DOT does not have the ability to query state
transportation departments, the industry must surely be aware of those entities that
impose fees on hazardous materials transportation and could easily provide that
information to PHMSA. In short, it is unreasonable to require grantees to provide
information about fees or programs which they do not administer.
The second section of additional information involves planning grants. The information
in the initial question about how much money is provided to LEPCs for planning is easily
obtainable and in fact, US DOT already has that information so the question is basically
redundant. Questions concerning emergency plans reveal a lack of understanding by
PHMSA concerning the function of LEPCs. LEPCs were required to complete local
emergency plans in 1987 and are required by law to update them annually. They are also
required to exercise their plan annually. Emergency preparedness is a continuum of
activities including updating the plan, training and exercising. It is probably almost
impossible to separate the exact dollar amount spent on each activity since each one is
part of a continuum of activity. It is certainly reasonable to require that LEPCs which
receive HMEP grant funding comply with the requirements of EPCRA as Oklahoma
currently does. If an LEPC is in compliance, then they are engaging in all the activities
of the preparedness continuum. To require volunteers, because all LEPC members are in
fact volunteers, to spend time answering unnecessary questions and trying to tease out
exactly how much of their total grant was spent in activities which overlap is
unreasonable. The dedicated volunteers who serve on LEPCs already give up valuable
time to actually do the work of planning, training and exercising in addition to meeting,
providing outreach, collecting information and tracking hazardous materials incidents.
Please respect their service by understanding that no one has time for paperwork which
will not make communities safer. Additionally, questions on assessment and commodity
flow studies once again reflect PHMSA's lack of understanding of local capabilities and
costs. Most volunteer firemen would be hard pressed to complete assessments given their
other responsibilities. While commodity flow studies are extremely valuable, they are
also extremely expensive to conduct properly so that usable information results. In fact,
in Oklahoma we have not been able to conduct a statewide commodity flow study

because hnds are not available. The strict percentage allotted for planning under the
HMEP grant system makes it almost impossible to use HMEP funds for flow studies due
to the expense of such studies. Flexibility in use of HMEP funds between training and
planning might allow such studies but that does not exist now.
The final series of questions involves training. Again, the questions reveal the lack of
understanding by PHMSA of the training requirements already in place on first
responders. The folks who respond to hazardous materials accidents must have certain
levels of training under OSHA regulations. There are also requirement under NFPA. In
addition, there are now NIMSIICS training requirements from DHS. Local volunteers do
not have the luxury to assess what training they might need, they are strapped to get the
required training. PHMSA clearly does not understand the turn-over associated with
volunteer fire departments. Every year, new volunteers must start over with training
requirements. Every year, long time members of a volunteer force must take refresher
courses and the additional courses that DHS has been requiring every year since it came
into existence. Once again, questions about how much of the training budget went for
each phase of training such as monitoring, evaluating, critiquing, and management
activities will be almost impossible to calculate and the purpose of that level of
micromanagement has not been stated.
The OHMERC believes PHMSA has greatly underestimated the reporting burden of this
proposed rule. Although there are only three numbered questions in the rule pertaining to
planning, if one looks closely there are actually 3 1 questions embedded in these three.
Similarly, there are 17 questions on use of grant funds for training embedded within three
questions. In the section on possible state fees, while there are only 2 numbered
questions, there exists the possibility of actually 9 total questions to answer. So, although
on the surface, it appears as if grantees are only gathering information on 8 questions,
actually 59 questions require answers under this rule. Just that number alone
demonstrates the unnecessary burden of this rule. In addition, based on PHMSAYs
estimates of number of grantees and total hours of burden, the State of Oklahoma is
expected to spend 80 hours complying with this rule. Two week, yes two weeks, spent
answering questions for which no purpose has been expressed. But it is really worse than
that. Most of the information has to be collected by LEPCs. Assuming that they spend
half the time estimated by PHMSA for grantees on information collection, that means
volunteers will spend 40 hours, a week, trying to gather this information. That is an
unreasonable burden to place on volunteers. Considering that 21 LEPCs receive HMEP
funds in Oklahoma, that is a total of 840 additional hours that PHMSA failed to consider.
The reporting burden for Oklahoma would not be 80 hours as estimated by PHMSA but
actually 920 hours. That folks is 23 weeks. Half a year spend on paperwork. That
would probably be funny if it were not time taken from actually protecting Oklahoma
citizens.
In summary, this rule should not go forward because it is not necessary for the proper
performance of the Department and PHMSA has failed to articulate any utility for the
information. Additionally, PHMSA has grossly underestimated the burden this rule
would impose upon grantees, LEPCS and volunteers around the country. Finally, the

information, if collected, will be flawed because PHMSA fails to understand the
preparedness continuum or the present requirements under law for LEPCs and first
responders and thus does not ask questions which can be answered accurately.
PHMSA has failed to demonstrate a need to collect this additional information. PHMSA
failed to respond to concerns from states and LEPCS about the burden imposed by this
information collection expressed previously.
On behalf of the OHMERC and LEPCS in Oklahoma, I would like to close with a
reminder that this burden will be placed on folks who already give freely of their time to
help keep their families and neighbors safe. Every county in Oklahoma has hazardous
materials transported on its roads and highways. Every citizen in Oklahoma is vulnerable
to harm if accidents involving these materials are not responded to quickly and
efficiently. Such response cannot occur without a preparedness continuum of planning,
training and exercising. Men and women in Oklahoma are willing to give up valuable
time with their families and fiends to participate in this continuum because they know it
is important work. Will they stop volunteering just because someone in Washington, DC
who doesn't understand the process suddenly gives them a week's worth of paperwork to
fill out? I don't know that answer to that question. I do know the health and safety of
Oklahomans is too valuable take the risk that the increased burden of this rule will
discourage the volunteer efforts of these local heroes. Please, respect the time and effort
of volunteers. Please, acknowledge the risk transportation of hazardous materials
imposes on innocent bystanders everyday. Please, honor the efforts of folks willing to
stand in the gap. Please, do not impose unnecessary paperwork with no practical utility
on people with real lives. Please, withdraw this proposed information collection rule.
Sincerely,

Montressa Jo Elder
Chair, Oklahoma Hazardous Materials Emergency Response Commission

I

General c0mment:Kiowa county Emergency Management and t h e Local Emergency planning
commi t t e e serves a p o p u l a t i o n o f approximate1 10,000 people. Being a r u r a l
county i n southwest Oklahoma, w i t h a low popu a t i o n , we have a v e r l i m i t e d t a x
base i n which t o fund a l l t h e o f f i c e s r e q u i r e d by s t a t e and federa laws and
mandates. ~ o s ot f those laws and mandates a r e unfunded.

r

z

Our l o c a l LEPC receives no funding i n which t o operate from from t h e l o c a l
government.
If
t h e requi r e d
requi rements a r e imp1emented f o r l o c a l LEPC' s, someone
w i l l have t o
e r , c o l l e c t and dissimenate t h a t i n f o r m a t i o n . T h i s means
someone w i l l
t h e o s i t i o n . ~f t h e l o c a l government has t o fund t h i s
p o s i t i o n , i t means t h e r e w i l l ave t o be c u t s made somewhere i n t h e l o c a l
government.

g

Most g e n e r a l l y t h i s means t h e Emergenc Manager w i l l have t o be c u t from
employement, o r t h a t t h e s h e r i f f w i l l ave t o e l i m i n a t e one o f h i s two deputies.

K

he HMEP Grant t h a t t h e small l o c a l j u r i s d i c t i o n s receive a r e important t o keep an
a l l v o l u n t e e r LEPC o e r a t i n g and meeting and conducting business. 1f r e p o r t i n g
requirements t o t h e ocal LEPC a r e imposed, i t w i l l be harder t o g e t l o c a l people t o

f'

serve on t h e LEPC.

i f t h e r e p o r t i n g r e u i rements a r e imposed, more funding w i ! 1 .have t o be
i v e n t o t h e small, r u r a l j u r i s i c t i o n s t o pay someone t o f i l l t h e p o s i t i o n created

If e e l t h a t

1

e bureacry o f t h i s r e p o r t i n g requirement
Stephen T. Grayson
v i ce c h a i rman
Kiowa county LEPC

Page 1

.

General Comment :I am c h a i rperson f o r our 1o c a l Emergency ~l
anni ng Commi t t e e I w i sh
t o express
disma a t t h e prospect o f more red tape r e p o r t i n g requirments being placed on
t e smaly v o l u n t e e r LEPC groups such as t h e one I am p a r t o f . we have more
t h a n we can do now and a r e ressed f o r t i m e t o g e t i t a l l done. AS v o l u n t e e r s i t i s
hard t o r e c r u i t enough peop e t o h e l p s i n c e we a l l have jobs and personal
responsi b i l t i e s we must t e n d t o a l s o . please consider t h a t we a r e n o t a b l e t o h i r e
h e l p t o t a k e on a d d i t i o n a l burdens and a c t a c c o r d i n g l y .

mx

7

Page 1

General Comment :
OKLAHOMA HAZARDOUS MATERIALS
EMERGENCY RESPONSE COMMISSION

October 30, 2007

Susan E. ~ u d l e y
Admi n i s t r a t o r
O f f i c e o f I n f o r m a t i o n and Regulatory ~ f f ar si
O f f i c e o f Management and Budget
725 ? 1 7 t h S t r e e t , Nw
Washington, DC 20503
Request t o Modify t h e Hazardous m a t e r i a l s p u b l i c sector T r a i n i n g and
Planning Grants Appl ic a t i o n (OMB Control Number 2137-0586)

RE:

Dear Admi n i s t r a t o r Dud1ey;
Chairman of t h e oklahoma Hazardous M a t e r i a l s Emergency Response
Commission (OHMERC), I p r e v i o u s l y commented regarding t h e DOT PHMSA
I n f o r m a t i o n c o l l e c t i o n ~ c t i v i t y~ o t i c e ,~ o c k e tPHMSA-2007-27181. The OHMERC
oversees t h e d i s t r i b u t i o n o f HMEP grants t o Local Emergenc planning
committees s e c i f i c a l l y f o r planning f o r hazardous materia s i n c i d e n t s and f o r
t r a i n i n g o f ocal responders. Since HMEP g r a n t funds are o n l y source o f t r a i n i n g
funds f o r Oklahoma?~volunteer f i r s t responders as we11 as t h e o n l y source o f funds
f o r e x e r c i s i ng response t o hazardous m a t e r i a l s 1ncidents, t h i s funding s t ream is
v i t a l l y important t o t h e s a f e t y o f oklahoma c i t i z e n s .

AS

Y

C

Iwas r e c e n t l y made aware o f a l e t t e r sent t o you on Oct. 12, 2007 from a group

c a l l i n g themselves ? I n t e r e s t e d P a r t i e s f o r Hazardous M a t e r i a l s TranSpOrtatlOn.?
T h i s l e t t e r i s so d i s t u r b i n g t o me t h a t Iam compelled t o address t h e apparent
i n t e n t and content t o you d l r e c t l y . ~i
r s t , by sending t h e l e t t e r t o you r a t h e r than
p o s t i n g t o t h e p u b l i c docket, i t appears t h a t t h i s group i s d e l i b e r a t e l y attempting

tn
--

circumvent u b l i c p a r t i c i p a t i o n i n t h e r u l e makin process. BY t a k i n t h i s a c t i o n ,
t h i s group i a s t r i e d , behind closed doors, t o infyuence agencies i n t e middle o f an

I?

a n a l y s i s of comments concernin a very important r u l e making a c t i o n . Iam
g r a t e f u l t h a t DOT recognized t g a t t h i s attem t was c l e a r l y improper and posted
t h e l e t t e r so t h a t i t becomes p a r t o f t h e pu l i c process even though i t took 10 days

g

t o do so. please note t h a t Iam p o s t i n g t h i s response t o t h e p u b l i c docket a t t h e
same t i m e i t i s t r a n s m i t t e d t o your o f f i c e . Iwould ask t h a t your agency make
c l e a r t h a t l e g i t i m a t e comments d i r e c t e d t o r u l e making must be a v a i l a b l e t o a l l
p a r t i e s p o t e n t i a l l y a f f e c t e d by such r u l e making. Please do n o t a l l o w an i n d u s t r y
w i t h means t o
employ a p r o f e s s i o n a l l o b b y i s t t o o v e r r i d e t h e i n t e r e s t s o f p u b l i c s a f e t y which a r e
represented by s t a t e and t r i b a l employees and l o c a l volunteers.
I n a d d i t i o n t o t h e improper attempt t o undul i n f l u e n c e t h e r u l e making process,
t h e r e a r e a couple o f issues r a i s e d i n t h i s e t t e r from ? ~ n t e r e s t e dp a r t i e s ? which I

Y

wish t o c l a r i f y . F i r s t , they a r e c o r r e c t t h a t many o f us a t t h e s t a t e and l o c a l
1eve1
j o i n e d t o g e t h e r i n researching and developing a response t o t h e n o t i c e o f
Page 1

PHMSA-2007-27181-0025[~]
i n f o r m a t i o n c o l l e c t i o n a c t i v i t y . Those o f us who work d a i l y w i t h planning and
t r a i n i n g t o respond t o hazardous m a t e r i a l s i n c i d e n t s r e l y on our c o l l e c t i v e
experience t o enhance our programs. Iwork c l o s e l y w i t h o t h e r s t a t e s t o i d e n t i f y
and solve common problems. Such c o l l a b o r a t i o n and networking i s important
because, as Iam sure you are aware, most overnment employees have a number
of responsi b i 1 i t i e s . Personally, d u r i n g t e comment p e r i o d f o r t h i s p a r t i c u l a r
n o t i c e , t h e r e were f o u r ongoin p r e s i d e n t i a l l y declared d i s a s t e r s i n t h e s t a t e of
Oklahoma. As t h e Department o ~ n vronmental
i
Qua1it y Emergency Response
c o o r d i n a t o r , Iwas very busy w i t h d u t i e s t o h e l p i n s u r e t h e r a p i d recovery across
t h e s t a t e from unprecedented f l o o d i n g accompanied by hazardous m a t e r i a l s
s p i l l s . If e l t i t was v i t a l 1 important t o comment on t h i s i n f o r m a t i o n c o l l e c t i o n
n o t i c e and Iwas very g r a t e f u t o my colleagues across t h e country who worked
t o g e t h e r t o provide back round research t o me. Yes, we had a coordinated voice.
T h i s should n o t lessen t e impact o f my o b j e c t i o n s t o t h e i n f o r m a t i o n c o l l e c t i o n
n o t i c e b u t r a t h e r strengthen them; i t demonstrates t h e c o l l e c t i v e concern o f f o l k s
a l l over t h e u n i t e d s t a t e s who work d a i l y t o make c i t i z e n s s a f e r d e s p i t e hazardous
materi a1 s t r a n s p o r t e d through t h e i r communities.

#

9

y

#

Iwould l i k e t o r e i t e r a t e my o p p o s i t i o n t o i n c r e a s i n g t h e burden o f i n f o r m a t i o n
c o l l e c t i o n on t h e volunteer responders and lanners i n Oklahoma. AS Is t a t e d

7

PbS

p r e v i o u s l y , over 80% o f f i r e f i g h t e r s i n ok ahoma are volunteers. They have
and f a m i l y r e s p o n s i b i l i t i e s i n a d d i t i o n t o h e l p i n
neighbors i n times o
emergencies. HMEP funds are t h e o n l y ; Irepeat t
, source o f hazardous
m a t e r i a l s t r a i n i n g f o r these dedicated
ahoma does n o t c o l l e c t any
o t h e r fees f o r t h i s purpose. I n a d d i t i o n , HMEP funds are provided t o LEPCs who
can demonstrate t h a t they update t h e i r hazardous m a t e r i a l s p l a n and exercise
t h a t p l a n annually. Again, these are t h e o n l y ; Irepeat t h e o n l y , funds a v a i l a b l e
to

p r o v i d e t h e resources f o r t h e requi red planning and e x e r c i s i n g . I n my 19 years o f
p a r t i c i p a t i o n i n emergenc planning and exercises, Iam unaware o f a s i n g l e
e x e r c i se t h a t d i d n o t inc ude a hazardous m a t e r i a l t r a n s p o r t a t i o n i n c i d e n t aspect.
Ihave several counties i n which t h e r e are l e s s than f i v e f a c i l i t i e s which are
r e q u i red
t o submit a hazardous chemical i n v e n t o r y , so f o r these counties t h e o n l y r e a l r i s k
of a hazardous m a t e r i a l s i n c i d e n t i s t r a n s p o r t a t i o n r e l a t e d . These volunteer groups

y

o f responders and planners already submit d e t a i l e d i n f o r m a t i o n on t h e i r use o f
HMEP funds.
I t i s n e i t h e r reasonable nor c o r r e c t t o impose f u r t h e r burden on
these f o l k s w i t h o u t a c l e a r p l a n and purpose and w i t h o u t demonstration t h a t such
burden would increase t h e e f f e c t i v e n e s s o f emergency response. The i n f o r m a t i o n
c o l l e c t i o n n o t i c e f a i l s i n both respects. AS an employee o f a r e g u l a t o r y agency, I
f r e q u e n t l y hear impassioned requests from industr , p a r t i c u l a r l small business , t o
reduce paperwork burden. ~t i s t h e r e f o r e extreme y strange t o ear an i n d u s t r y
group argue t o increase paperwork burden on t h e very f o l k s who volunteer t o p u t
t h e i r l i v e s on t h e l i n e t o p r o t e c t t h e i r c i t i z e n s i n case t h a t i n d u s t r y has an
accident.

y

g

I n c l o s i n g Iam asking t h a t you consider t h r e e p o i n t s i n regards t o t h e a c t i o n ? of
t h e ? I n t e r e s t e d Parties?. F i r s t , t h a t a11 agency del iberations are conducted in
f u l l.
view o f t h e p u b l i c and t h a t improper attempts behind closed doors t o i n f l u e n c e
a n a l y s i s o f comments a r e r e j e c t e d . second, t h a t t h e coordinated comments of
s t a t e and t r i b a l representatives and l o c a l volunteers be seen as v a l i d o b j e c t i o n s
based on common needs and experiences o f a n a t u r a l constituency. T h i r d , and
most i m p o r t a n t l y , t h a t f u r t h e r burden i s n o t placed on volunteers, DO n o t f u r t h e r
burden t h e men and women who already miss soccer games, dance r e c i t a l s and
anniversary dinners i n order t o serve t h e i r f e l l o w c i t i z e n s . DO n o t impose
unnecessary hardship on volunteers who g i v e up n i g h t s and weekends t o a t t e n d
t r a i n i n g and conduct exercises so t h e i r communities can be s a f e r . Please respect
t h e dedicated e f f o r t s o f volunteers i n oklahoma and around t h e country.

hank you f o r your t i m e and consideration.
Page 2

S i ncerel y ,

Montressa 30 Elder , chai rman
Oklahoma Hazardous Materi a1 s Emergency Response Commi ssion
Cc:

Ted w i 1 ke, Associate Admi n i s t r a t o r f o r Hazardous Materi a1 s Safety, DOT

Page 3

Comment I n f o : ===============s=
General Comment:NASlTPO response t o t h e I n t e r e s t e d p a r t i e s l a t e f i l e d comment
1e t t e r .

Page 1

OKLAHOMA HAZARDOUS MATERIALS
EMERGENCY RESPONSE COMMISSION
October 30,2007

Susan E. Dudley
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
725 - 1 7 Street,
~ ~ NW
Washington, DC 20503
RE: Request to Modify the Hazardous materials Public Sector Training and
Planning Grants Application (OMB Control Number 2137-0586)
Dear Administrator Dudley;
As Chairman of the Oklahoma Hazardous Materials Emergency Response
Commission (OHMERC), I previously commented regarding the DOT
PHMSA Information Collection Activity Notice, Docket PHMSA-2007-27181.
The OHMERC oversees the distribution of HMEP grants to Local Emergency
Planning Committees specifically for planning for hazardous materials
incidents and for training of local responders. Since HMEP grant funds are
only source of training funds for Oklahoma's volunteer first responders as
well as the only source of funds for exercising response to hazardous materials
incidents, this funding stream is vitally important to the safety of Oklahoma
citizens.
I was recently made aware of a letter sent to you on Oct. 12,2007 from a group
calling themselves "Interested Parties for Hazardous Materials
Transportation." This letter is so disturbing to me that I am compelled to
address the apparent intent and content to you directly. First, by sending the
letter to you rather than posting to the public docket, it appears that this group
is deliberately attempting to circumvent public participation in the rule
making process. By taking this action, this group has tried, behind closed
doors, to influence agencies in the middle of an analysis of comments
concerning a very important rule making action. I am grateful that DOT
recognized that this attempt was clearly improper and posted the letter so that
it becomes part of the public process even though it took 10 days to do so.
Please note that I am posting this response to the public docket at the same
time it is transmitted to your office. I would ask that your agency make clear
that legitimate comments directed to rule making must be available to all

industry with means to

employ a professional lobbyist to override the interests of public safety which
are represented by state and tribal employees and local volunteers.
In addition to the improper attempt to unduly influence the rule making
process, there are a couple of issues raised in this letter from 'Interested
Parties' which I wish to clarify. First, they are correct that many of us at the
state and local level joined together in researching and developing a response
to the notice of information collection activity. Those of us who work daily
with planning and training to respond to hazardous materials incidents rely
on our collective experience to enhance our programs. I work closely with
other states to identify and solve common problems. Such collaboration and
networking is important because, as I am sure you are aware, most government
employees have a number of responsibilities. Personally, during the comment
period for this particular notice, there were four ongoing presidentially
declared disasters in the State of Oklahoma. As the Department of
Environmental Quality Emergency Response Coordinator, I was very busy
with duties to help insure the rapid recovery across the state from
unprecedented flooding accompanied by hazardous materials spills. I felt it
was vitally important to comment on this information collection notice and I
was very grateful to my colleagues across the country who worked together to
provide background research to me. Yes, we had a coordinated voice. This
should not lessen the impact of my objections to the information collection
notice but rather strengthen them; it demonstrates the collective concern of
f-MIl
hkertdneMrS~w3ibim
W~
g a b . i ~ d l a tkbkhm
e
crfifdakmpthen
h a M & a n ~ i a M & ~ s p c ~ e ~ ~ & & p l a ~ t n m i m a U a h o m a . As I stated
previously, over 80% of fire fighters in Oklahoma are volunteers. They have
jobs and family responsibilities in addition to helping their neighbors in
times of emergencies. HMEP funds are the only; I repeat the only, source of
hazardous materials training for these dedicated individuals. Oklahoma does
not collect any other fees for this purpose. In addition, HMEP funds are
provided to LEPCs who can demonstrate that they update their hazardous
materials plan and exercise that plan annually. Again, these are the only; I
repeat the only, funds available to provide the resources for the required
planning and exercising. In my 19 years of participation in emergency
planning and exercises, I am unaware of a single exercise that did not include
a hazardous material transportation incident aspect. I have several counties in
which there are less than five facilities which are required to submit a
hazardous chemical inventory, so for these counties the only real risk of a
hazardous materials incident is transportation related. These volunteer groups
of responders and planners already submit detailed information on their use
of HMEP funds. It is neither reasonable nor correct to impose further burden
on these folks without a clear plan and purpose and without demonstration
that such burden would increase the effectiveness of emergency response. The
information collection notice fails in both respects. As an employee of a
regulatory agency, I frequently hear impassioned requests from industry,
particularly small business, to reduce paperwork burden. It is therefore
extremely strange to hear an industry group argue to increase paperwork
burden on the very folks who volunteer to put their lives on the line to protect
their citizens in case that industry has an accident.

In closing I am asking that you consider three points in regards to the actions
of the "Interested Parties". First, that all agency deliberations are conducted i n
full view of the public and that improper attempts behind closed doors to
influence analysis of comments are rejected. Second, that the coordinated
comments of state and tribal representatives and local volunteers b e seen as
valid objections based on common needs and experiences of a natural
constituency. Third, and most importantly, that further burden is not placed
on volunteers. Do not further burden the men and women who already miss
soccer games, dance recitals and anniversary dinners in order to serve their
fellow citizens. Do not impose unnecessary hardship on volunteers who give
up nights and weekends to attend training and conduct exercises so their
communities can be safer. Please respect the dedicated efforts of volunteers in
DlkAakayoar & n d y i r u n ~ h ~ ~ ~ u n ~ d e r a t i o n .
Sincerely,

Montressa Jo Elder, Chairman
Oklahoma Hazardous Materials Emergency Response Commission
Cc: Ted Wilke, Associate Administrator for Hazardous Materials Safety, DOT

National Association of SARA Title 111
Program Officials
Cotzcerned with the Enrergelzc-y Plurr~iingand Community
Right-to-Knou?Act

October 24,2007

Posted in Docket PHMSA-2007-27 181 at Regulations.gov

Susan E. Dudley
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
725 - 17h Street, NW
Washington, DC 20503

Via Fax 202.395.3888

RE: Request to Modify the Hazardous materials Public Sector Training and Planning
Grants Application (OMB Control Number 2 137-0586)
Dear Administrator Dudley;
The "Interested Parties" (IP) letter to you, responding to commenters' key points
does not make many new arguments beyond those in their earlier comment letters.
Primarily, the IP argue that the additional information will help PHMSA determine where
need exists for grant money and allow targeted assistance.
What is most galling, however, is this blatant attempt to derail the public process
of soliciting comments by a back-door approach. This is the tactic of a party with a
hidden agenda rather than one with a legitimate position.
This back-door effort taints what has otherwise been a open public process
regardless of whether the letter was ultimately posted to the docket - 10 days after
receipt. The letter was not timely under the FR notice and is grossly improper. At this
point, the process is so tainted by the potential consideration of the IP material, the
inability of other commenters to respond and the possibility of other ex-party
communications that any proposal to change the types of questions posed to HMEP
grantees should be re-noticed for public comment.

I.

Additional information aids identification of need

The IP argue that "PHMSA's proposal to glean additional relevant information
will aid the agency in its efforts to identify where need exists and to provide targeted and
worthwhile assistance." The IP state again that the Secretary has discretion "to consider
whatever appropriate factors would aid in determining where needs do exist." While all
parties agree that the Secretary has information collection authority and discretion, this

argument differs from the arguments in the comment letters because the other letters
argue that the additional information will not help PHMSA determine how effectively
grant money is being spent. Here, it appears that the IP argue the additional information
will assist PHMSA to determine where the grant money is most needed.
However, while identification of need is a valid argument, PHMSA already
gathers information concerning State and Tribe hazardous materials transportation fees;
thus, the proposed additional information is unnecessary and duplicative. The Research
and Special Programs Administration (RSPA) anticipated in 1992 that "the most needy
projects will be clearly identified through hazard-specific information which must be
provided by an applicant and considered in the grant award process" and specifically
rejected revising the rule to prohibit a grant award in instances where there is no clear
demonstration that State hazardous materials fees are being used as required. 57 Fed.
Reg. 43062 (Major Issues (C)).
Under Section 110.30(a)(4),the HMEP application must include "a written
statement explaining whether the State or tribe assesses and collects fees on the
transportation of hazardous materials and whether such assessments or fees are used
solely to carry out purposes related to the transportation of hazardous materials."
Further, under Section 5 125(f),the Secretary may request information concerning the
basis on which the fee is levied, the purposes for which the revenue is used, the total
amount collected, and other relevant matters. This information currently allows PHMSA
to determine where need exists that is not covered by such fees. Further, the proposed
questions ask for information, such as what agency administers the fee and whether
company size is considered, that is not relevant to determining which parties are most in
need. As the comment letters state, data collection for the sake of data collection is
unreasonable.
Moreover, the IP argue that the other factors are intimately related to
transportation and cannot be separated in their consideration while the comment letters
argue that other factors besides transportation must be considered to determine need.
While fees should be, and are reported, Section 5 116(b)(4) explicitly states the other
information relevant to whether the Secretary should allocate grant money. Therefore,
fees are an important factor as to whether a party should receive an HMEP grant, but they
are not the determinative factor for the level of need. And as stated above, fee
information is already collected thus the duplicative questions are unnecessary.
11. Fees should be reported and monitored

The IP state that States are failing to report their non-federal fees in their HMEP
grant applications thus State and Tribe fees should "be reported and monitored to ensure
that they are being assessed and applied in accordance with federal law." The IP argue
that an assurance that such fees are "both properly reported and properly applied to their
required use is reasonable." The IP further argue that the comment "it would be
improper to state that PHMSA should measure such effectiveness solely on whether the
fee is used solely to carry out a purpose related to the transportation of hazardous

material" is a tacit admission that some States are not applying their fees solely for
purposes related to hazardous materials transportation.
As stated above, Sections 110.30(a), 5 116(b)(4) and 5 125(f) already require
States and Tribes to report fees collection in connection with the transportation of
hazardous material. If an HMEP applicant does not provide sufficient information, the
Secretary may request more detail about the State or Tribe's fees. Section 5 125(f).
Therefore, because hazardous materials transportation fee information is already
collected by the Secretary, the proposed questions are unnecessary.
Further, the RSPA stated that the grant programs "increase the emphasis on
emergency planning related to hazardous materials moving in transportation, and
improve the capability of local jurisdictions to plan for and respond to potential risks
posed by hazardous materials in transportation, as well as at fixed sites." 57 Fed. Reg.
43062 (Major Issues (A)). This statement supports the argument in the comment letters
that measuring effectiveness solely on whether fees are used only for purposes related to
the transportation of hazardous material is improper, not the IP argument that States and
Tribes are misapplying their collected fees when such fees are used for other purposes
than transportation of hazardous materials.
111. Congress requires information collection

The IP argue that, given the finite funding available and the Secretary's mission to
determine where need exists, "Congress required the Secretary to consider whether the
State or Tribe imposes and collects a fee on hazardous materials transportation and
whether the fee is applied only to carry out a purpose related to hazardous materials
transportation." The IP also state that "Congress vested such authority [for collecting
information concerning State and Tribe hazardous materials transportation fees] in the
Secretary to ensure that States and Tribes would not hide behind the guise of so-called
hazardous materials transportation fees, while applying the revenues raised from
transporters to serve ends that are unrelated to hazardous materials transportation." The
IP argument continues that the "intent [in vesting such authority] was to prevent
unnecessary hindrances to the national, uniform scope of hazardous materials
transportation."
The statements concerning the Secretary's authority and discretion are correct;
however, the Senate and House reports and hearings of the HMEP grant program do not
focus singularly on transportation but consistently stated all factors listed in Section
5125(f) that the Secretary may consider. See e.g. S. REP.NO. 101-449 (1990); H.R. Rep.
No. 101-444 part l,25 (1990) (impose fees so long as reasonable and used exclusively
for hazardous material transportation purposes (including emergency response training
and planning activities)); H.R. Rep. No. 101-444 part 2,39 (1990) (allocation of funds to
be based upon demonstrated needs taking into consideration certain specified factors);
Reauthorization of the Hazardous Materials Transportation UniformSafety Act of 1990:
Hearing Before the Subcomm. On Surface Transportation of the Comm. On Commerce,
Science, and Transportation, 103rd Cong. (1993). Therefore, while hazardous materials

transportation fees are to be used for a purpose related to transporting hazardous material,
the fees may also be used for "enforcement and planning, developing, and maintaining a
capability for emergency response." Section 5 125(f). These other factors facilitate safe
transportation of hazardous materials but to say the fees can only be used for
transportation ignores the Congressional intent in including the other factors for
preparation and emergency response.
Further, the IP's use of the statement by the RSPA in 57 Fed. Reg. 30626 does not
advance their argument that the Secretary's authority to collect information on State and
Tribe hazardous materials transportation fees as granted by Congress was intended to
ensure that States and Tribes do not hide behind the guise of such so-called fees. The
RSPA does state that the grant program was added to the Act clearly demonstrating "a
legislative intent to authorize hazardous materials transportation fees so long as those fees
meet the criteria of that section." 57 Fed. Reg. 30626 (B9). However, RSPA also stated
that the Federal registration and fee program does not preempt or restrict a State or
Tribe's ability to impose fees on carriers of hazardous materials. Id.
Also, the IP continue to ignore the fact that the Act clearly states that fees must be
fair and "used for a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for emergency
response." Section 5 125(f) (emphasis added). These purposes, while related to
hazardous material transportation, do not solely concern actual transportation. Therefore,
States and Tribes are permitted to use fees collected from hazardous materials carriers for
purposes other than direct transportation of hazardous materials and are not hiding
"behind the guise of so-called hazardous materials transportation fees" when they do so.
IV. Burden of additional disclosure
The IP state that applicant States and Tribes already generate "a good deal of
related information" thus disclosure of additional relevant data "should not be
unnecessarily burdensome." Apparently the IP members have never worked with
volunteer first responder organizations. Every additional data collection effort is a
burden. While some burdens are reasonable, data collection for the sake of collection is
not.

V. PHMSA reporting requirements
The IP note that PHMSA is required under Section 5 116(k) to prepare an annual
report disclosing the allocation and uses of the planning and training grants and argue that
the additional information proposed will help PHMSA satisfy that reporting
requirements.
What the IP fails to note, however, is that the information Section 5 116(k)
requires the Secretary to report is already collected through the grant application process.
Under 110.30(~)(5),grant applicants must provide a project narrative describing the
current training programs, the training audience, the estimated total number of persons to

be training, and the ways the training grants will support training needs. This is the
information required by Section 5 1 16(k); the Secretary "shall identify the ultimate
recipients of training grants and include a detailed accounting of all grant expenditures by
grant recipients, the number of persons trained under the grant programs, and an
evaluation of the efficacy of training programs carried out." Therefore, the Secretary, in
allocating grant money, currently collects the information necessary for the Section
5 116(k) reports. The proposed questions do not add relevant information for these
reports.
VI. 1990 amendments and reduction of State and Tribe fees
The IP note that when they supported the 1990 Act amendments, including the
HMEP grant program, they did so with the understanding that creation of a federal
repository of grant monies to ensure sufficient preparation for emergency responders
would reduce the need for State and Tribes to impose their own fees to find emergency
responders.
The IP may have believed that the HMEP grant program would reduce the need
for State and Tribe fees on transportation of hazardous materials but the Act clearly
allows States and Tribes to impose such fees. Section 5125(f). And, considering the
need to facilitate responses to accidents involving transportation of hazardous materials
and provide continual planning and training for such responses, the additional fimding
provided by the fees is valuable and necessary. Therefore, PHMSA should not burden
the collection of those fees by States and Tribes with the proposed additional information
requirement.

VII. Addressing unfair or malapportioned non-federal fees
The IP argue that addressing "unfair or malapportioned non-federal fees via
litigation or individual petitions for preemption is unnecessary and costly" and
"undermines Congress' purpose in providing PHMSA with the authority to consider
whether fees are fair and properly utilized when considering HMEP grants." Further, IP
argue that doing so places PHMSA under an unnecessary administrative burden to
respond to preemption petitions on an individual basis.
However, as stated by the comment letters, "individual parties are better equipped
not only to recognize the unfairness, but also to take legal action in order to dispute the
fee." In addition, neither the Senate or House reports nor hearings, cited above, stated
the Secretary must consider apportionment of fees. The language of the Act is that fees
must be "related to transporting hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency response" not "apportioned"
among hazardous materials transportation. Section 5125(f). If Congress had wanted the
Secretary to determine how State and Tribe fees are specifically apportioned, Congress
would have stated so.

Conclusion
As our colleague £tom Oklahoma so ably states:
" . .. many of us at the state and local level joined together in researching and developing
a response to the notice of information collection activity. Those of us who work daily
with planning and training to respond to hazardous materials incidents rely on our
collective experience to enhance our programs. . . . Such collaboration and networking is
important because, as I am sure you are aware, most government employees have a
number of responsibilities. ... Yes, we had a coordinated voice. This should not lessen
the impact of [our] objections to the information collection notice but rather strengthen
them; it demonstrates the collective concern of folks all over the United States who work
daily to make citizens safer despite hazardous materials transported through their
communities."

What the IP entities, hiding behind a fiont rather than a collective effort, fail to
understand is that HMEP funding is frequently the only money first responders and
emergency planners ever see that allows them to work towards community safety.
Planning, training and exercises are not each some sort of free-standing commodity that
can be mixed and matched. Rather they are parts of the continuum of safety efforts
practiced by communities.
The IP entities are engaged in a commercial enterprise. They are expected to
profit from that enterprise. The agencies that use HMEP funding do not profit from the
transportation of hazardous materials into or through their communities. They must
simply cope and adapt to these hazards. If this process were fair, transportation
companies that ship through areas with limited equipment and poorer levels of training
would pay those communities more to improve their capacities. Instead, what the IP
entities propose is to further disadvantage these communities by a meaningless increase
in the burden of obtaining even the small amounts of money the IP entities would
grudgingly allow.
Sincerely,
Timothy R Gablehouse
President

E-mail: Ted Willke, Associate Administrator for Hazardous Materials Safety, DOT

Comments to DOT PHMSA Information Collection Activity Notice
Docket PHMSA-2007-27 181
Electronically submitted
Dear PHMSA:
Thank you for this opportunity to comment on what we believe to be a very important notice.
The National Association of SARA Title 111 Program Officials (NASTTPO) is made up of
members and staff of State Emergency Response Commissions (SERCs), Tribal Emergency
Response Commissions (TERCs), Local Emergency Planning Committees (LEPCs), various
federal agencies and private industry. Members include state, tribal or local government
employees as well as private sector representatives with Emergency Planning and Community
Right to Know (EPCRA) program responsibilities, such as health, occupational safety, first
response, environmental, and emergency management. The membership is dedicated to working
together to prepare for possible emergencies and disasters involving hazardous materials,
whether they are accidental releases or result from terrorist acts.
Our membership is heavily dependant on HMEP funding distributed through the states. The
burdens proposed by the current notice will fall on not just state agencies. Rather, it will fall on
local, tribal and other organizations that are users of the funding. These burdens are not trivial.
Many of our member agencies are volunteer groups. Devoting time and energy to reports
detracts from their other very important missions.
We believe that DOTIPHMSA has broad authority to collect information from grant recipients.
That authority should not be used absent some actual purpose and proposed use for the
information collected.
The collection of additional information in the manner advocated by petitioner and other
commenters is unjustified because their suggested use of that information is improper. In any
event, as DOTPHMSA notes, you already collect a large percentage of the information
requested. Data collection for the sake of data collection is unreasonable.
We do not believe that DOTPHMSA should impose the burden of information collection
without a clear plan and purpose to use the information in a fashion that comports with statute
and regulation. At this point all we really have is the advocacy of outsiders regarding the use of
the information. Until and unless DOTPHMSA is clear in its plans for the use of the
information it appears that the proposed collection activity is simply an increased burden without
a purpose.
The petitioner and commenters characterizes Congress' purpose in enacting the 1990
amendments as funding a federal mandate that enables states to "develop emergency response
plans" and train "emergency responders." However, this statement oversimplifies and narrows
the purpose of the 1990 amendments. Section 117(a) of the HMTA requires the Secretary of

Transportation to make grants to States for "developing, improving, and implementing
emergency response plans under EPCRA, including the determination of flow patterns of
hazardous materials within a State and between a State and another State; and determining the
need for regional hazardous materials response teams." 49 U.S.C. 8 117(a). Section 5125(f) of
the HMTA also states that grant moneys may be used for "enforcement and planning,
developing, and maintaining a capability for emergency response." 49 U.S.C. 8 5 125(f). In a
federal publication, the Agency further explained that the overall purpose of the grants is "to
improve the capability of communities to plan for and respond to the full range of potential risks
posed by accidents and incidents involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17,
1992). It is clear from both the statutory language and the information found in federal
publications that the overall intent of this aspect of the HMTA is one of leniency. It is meant to
allow states to engage in a wide variety of administrative activities and research, as well as
engaged work out in the field, directed towards the safe transport of hazardous materials. A
more narrow interpretation would defeat the overall purpose of the grants by restricting the flow
of money to activities that the state finds necessary to ensure the safe transport of hazardous
materials.
Additionally, the petitioner's comments suggest that the propriety of a state's utilization of nonfederally assessed fees is solely dependent on whether the fee collected is used for a purpose
related to transporting hazardous material. The HMTA, as well as the applicable Federal
Register excerpts, state that this is only one factor to be considered in the awarding of or denying
of grants. A number of other factors are at the discretion of the Secretary of Transportation,
including "the number of hazardous materials facilities, types and amounts of hazardous
materials transported, population at risk, frequency and number of incidents recorded in past
years, high mileage transportation corridors, whether the State or Indian tribe assesses and
collects fees on the transportation of hazardous materials and whether such assessments or fees
are used solely to carry out purposes related to the transportation of hazardous materials." 57 FR
43064 (Sept. 17, 1992). Because a wide variety of factors could come into play when assessing
the propriety of grant awards, it would be incorrect to state that PHMSA should have assessed
grant awards solely on "whether the fee is used only to carry out a purpose related to transporting
hazardous material" and failed to fulfill that duty. 49 U.S.C. 51 16(b)(4)(D).
49 USC 5 125(f)(l) does state that a fee can only be imposed on a hazardous waste transporter if that
fee is used for a purpose related to the transporting of hazardous material. However, this
information only need be reported to the Secretary of Transportation "on the Secretary's request" and
is not "mandated" by the statute. Petitioner and commenters characterizes this reporting
"requirement" as a "congressional mandate," which is not correct. The additional information
should only be collected if it serves some specific purpose - Congress did not mandate information
collection for the sake of information collection.
There are several other more specific arguments put forth by the petitioner and commenters that
need to be addressed in greater detail:

1.
"[I]n instances where there is no clear demonstration that State-levied hazardous
materials fees are being used as required by [49 U.S.C. 5125(f)], such state[s] should be
prohibited from receiving an award."'
The above argument was specifically rejected by the Research and Special Programs
Administration's ("RSPA") September, 1992 discussion of public comments to the final rule
implementing the Public Sector Training and Planning Grants Program ("PTPG")~. RSPA
responded to the above argument by stating:
RSPA is sensitive to the issue raised by this commenter and will carefully
consider that information in its grants-review process. However, it is not
necessary to revise the rule in the manner suggested by the ~ommenter.~
RSPA chose not to revise the rule as suggested because whether a state collects a fee and
how that fee are only some factors to be considered when allocating funds. Other factors
the RSPA considers include: the number of hazardous materials facilities; types and
amounts of hazardous materials transported; population at risk; frequency and number of
incidents recorded in past years; and high mileage transportation corridor^.^ These
factors are also included in the statutory section on monitoring and review of Planning
and Training ~rants.'
Although state fees have been invalidated through either the preemption determination process or
by a court, "no state in any year has been denied a PTPG"~a fact which demonstrates that the
RSPA considers all of the above factors when allocating monies, not just state fee collection and
usage. The additional information proposed for collection simply will not inform this analysis
in any way relative to the burdens imposed on the grant recipients.

2.
"[The newly requested fee information] would provide the data necessary for both
the agency and the regulated community to determine if states are in compliance with
applicable provisions of the HMTA."~
The Pipeline and Hazardous Materials Safety Administration ("PHMSA") already receives
almost all of the newly requested information. When discussing the expected burden of
reporting the information the agency stated: "HMEP [Hazardous Materials Emergency
Preparedness] grant recipients are required to submit performance reports, most of which should
include some or all of the information we are requesting."* The fact that the PHMSA already has
Letter from Interested Parties for Hazardous Materials Transportation, to The Honorable Thomas J. Barrett,
VADM Ret. Administrator, Pipeline and Hazardous Materials Safety Administration, US Department of
Transportation, at 1 (March 23,2007) [hereinafter Industry Letter].
Interagency Hazardous Materials Public Sector Training and Planning Grants, 57 Fed. Reg. 43062,43064 (Sept.
17, 1992).
Id.
Id.
49 U.S.C.A. 8 51 16(b)(4)(A-E).
Industry Letter, supra note 1, at 2.
Industry Letter, supra note 1 , at 3.
Information Collection Activities, 72 Fed. Reg. 36754,36757 (July 5,2007).

most of the information suggest that the proposed information collection effort is to appease
industry since "some states were not willing to provide industry with information sufficient to
determine whether states with hazmat fees were complying with the limitations of the HMTA."~
In such cases, the aggrieved industry party should pursue preemption if they think it is
appropriate rather than ask PHMSA to do its bidding.

3.
"Our petition will not have the effect of denying states or Indian tribes funds they
are entitled to receive."1°
This comment is somewhat disingenuous. By advocating an inappropriate standard for
preemption, the effort of collecting information for an invalid purpose will be to deny states and
tribes money to which they are entitled.
Whether or not a state or tribe is denied funding depends on the specifics of the fee in question.
While there appears to be some disagreement regarding which fees might be preempted - in fact
the petitioner and commenters are quite inconsistent on this point - there are some generalities
that are useful in this determination.
The specific section discussing fees is 8 5 125 part (9 which states:
Fees.--(l) A State, political subdivision of a State, or Indian tribe may impose a
fee related to transporting hazardous material only if the fee is fair and used for a
purpose related to transporting hazardous material, including enforcement and
planning, developing, and maintaining a capability for emergency response.
The key determinations are whether the fee is "fair" and whether used for "a purpose related to
transporting hazardous material." Any fee that is not "fair," or that is "used for" purposes other
than those specified in the 9 5 125(f), is preempted under 49 U.S.C. 5 125(a)(2) which states:
(a) General.--Except as provided in subsections (b), (c), and (e) of this section and
unless authorized by another law of the United States, a requirement of a State,
political subdivision of a State, or Indian tribe is preempted if-

(2) the requirement of the State, political subdivision, or tribe, as applied or
enforced, is an obstacle to accomplishing and carrying out this chapter, a
regulation prescribed under this chapter, or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland Security.
Basically there are three categories of preemption under 9 5125(a) and (b). First, is the
"dual compliance test" which preempts a law when it is not possible to comply with both
the non-Federal requirement and the Federal hazmat law or a regulation prescribed under

Industry Letter, supra note 1 , at 2.
'OId.,at 3.

federal hazmat law." Second, is the "obstacle test" which preempts a non-Federal
requirement if its application or enforcement is an obstacle to accomplishing and carrying
out the Federal hazmat law or a regulation prescribed under Federal hazmat law.12 Third
is the "covered subjects test" which preempts a non-Federal requirement if it concerns
any of the five covered subjects and is not "substantively the same as" the Federal hazmat
law or regulations7requirements.'3
Using existing information sources, State and tribal fees have been found to be preempted by
both courts and the RSPA through the preemption determination process under 49 U.S.C
5 125(d)(1). RSPA has found that fees which fail the fairness or "used for" test in 49 U.S.C.
5 125(f)(1)14,create an obstacle to carrying out the Federal hazardous materials transportation
law and thus fail the "obstacle test" under 49 U.S.C. 8 5 125(a)(2). The Supreme Court in
Evansville-Vanderbur~hcame up with a test to determine whether a fee is fair.I5 Under the
Evansville test, a fee is fair if it is:
(a) based on fair approximation of use of facilities;
(b) not excessive in relation to benefits conferred;
(c) does not discriminate against interstate commerceI6
The most common grounds for preemption is when the fee is not based on some fair
approximation of the use of facilities as is required under 49 U.S.C. § 5 1 2 5 ( ~ ( 1 ) . ' ~
A State may impose flat fees when "administrative difficulties make collection of more finely
calibrated user charges impracticable."'8 The state bears the burden of demonstrating the
practical impossibility of employing any form of apportionment that would render its tax better
"calibrated" than a flat tax.19 The Court has indicated that flat taxes are permissible when they
are shown to be "the only practicable means of collecting revenues from users and the use of a
more finely gradated user-fee schedule would pose genuine administrative b~rdens."~'
Conclusion

Index to Preemption of State and Local Laws and Regulations Under the Federal Hazardous Material
Transportation Law, PHMSA Office of Chief Council, available at http://rspa-

~d.
(f) FEES. (1) A State, political subdivision of a State, or Indian tribe may impose a fee related to transporting
hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for
emergency response.
Evansville-VanderburghAirport Auth. V. Delta Airlines, Inc. 405 U.S. 707 (1972).
l6 Id.
l7 ~ d .
American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266,297 (1987).
19
American Trucking Ass'ns v. Secretary of Administration, 613 N.E.2d, 95, 100 (Mass. 1993).
20
American Trucking Ass'ns, Inc. v. Scheiner, 483 US., at 296.
l3

l4

''

''

The party challengin the validity of a state statute on Commerce Clause grounds bears
the burden of proof$ The criteria under which fees will be evaluated are not specific,
which justifies the broad discretion given to the Secretary to determine whether the
purpose of the fee relates to hazardous materials transportation.
States, tribes and local governments plan, train and exercise to deal with the risks of
hazardous materials in transportation. Contrary to the narrative in the current notice,
DOTIPHMSA does already require that states and tribes broadly report on their use of
funds for planning, training, and exercises. Current reporting is more than adequate for a
determination under the second preemption test as evidenced by preemption actions to
this point.
As petitioner's comments show, such preemptive powers have been used when
necessary. Additionally, the petitioners listed a few instances where parties had taken
action against the State to ensure that non-federally assessed fees were not discriminatory
or malapportioned. Requiring an increased time-reporting burden on all grant applicants
is unfair considering that most fees are assessed in compliance with the law. When
fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.
The petitioner and commenters certainly wish to ease their burden in challenging fees. They
mischaracterize the obligations of DOTPHMSA to collect data to make a preemption evaluation
as mandatory. In these entities are unhappy about a specific state fee they should challenge it
rather than attempt to shift the burdens of these arguments to states and tribes.
Congress has given the agency broad discretion to evaluate both grants and the question
of preemption. Existing data collection would appear to be fully adequate to serve the
agency's needs in this regard. Until such time that DOTPHMSA can articulate a specific
use for the information that is consistent with the statute and regulations, the increased
burdens should not be imposed.

?'

American Trucking Ass'ns, Inc. v. State, 180 N.J. 377,396 (N.J., 2004).

I am Donald Hall the HMEP Grant Manager for the State of Texas.
Absent the HMEP program, almost all of our 270 LEPCs would have no resources for
planning and training activities.
I am sensitive to the industry desire not to pay more than its fair share of fees. Of course,
when it comes to hazmat incidents on the streets and highway, these very same industries
are fully responsible. When they think they are being unfairly charged for the costs of a
response and cleanup, they are eager to point the finger at local agencies for a failure to
have adequate plans and training.
In the rural parts of the Texas the response groups are almost entirely made up of
volunteers. Industry can't have it both ways. Without resources these agencies can't
possibly plan and train. As HMEP funding is the bulk of the resources they have,
industry's efforts to penalize states by artificially evaluating the use of funds, is illconceived at best.
DOT has authority to collect information. They should impose these burdens only when
there is a clear intent to use the information for a reasonable purpose that is consistent
with the statute and regulations.

The Purpose of State-Tribal Assessed Hazmat Fees
The Interested PartyAME comments characterize Congress' purpose in enacting
the 1990 amendments to the Hazardous Materials Transportation Act ("Act") as funding a
federal mandate that enables states to "develop emergency response plans" and train
"emergency responders." However, this statement oversimplifies and narrows the
purpose of the 1990 amendments. The plain language of the Act and the pertinent federal
publication list a variety of uses for HMEP grant money that are far broader in scope.
In a federal publication, the Department of Transportation ("DOT") asserted that
the overall purpose of the grants is "to improve the capability of communities to plan for
and respond to thefill range ofpotential risks posed by accidents and incidents
involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17, 1992) (emphasis added).
This broad purpose is articulated by the Act through its statutory provisions. For
example, section 5 116(a) of the Act requires the Secretary of Transportation
("Secretary") to issue grants to statedtribal authorities for "developing, improving, and
implementing emergency response plans under EPCRA, including the determination of
flow patterns of hazardous materials within a State and between a State and another State;
and determining the need for regional hazardous materials response teams." 49 U.S.C. 5
5 116(a) (2006). Section 5 125(f) of the Act states that grant money may be used for
"enforcement and planning, developing, and maintaining a capability for emergency
response." 49 U.S.C. 5 5 125(f) (2006). HMEP grant money should be used to train
public sector employees to respond to accidents and incidents involving hazardous
material. 49 U.S.C. 5 5 116(b)(l) (2006). Grant money can also be used to pay the
tuition costs and travel expenses of both those attending and those providing such
training. 49 U.S.C. 5 5 116(b)(3)(A)(i)-(iv) (2006).
Both the statutory language and the information found in federal publications
reveal that the overall intent of this aspect of the Act is one of leniency. The grants

provided by PHMSA are meant to allow states to engage in a wide variety of
administrative activities and research, as well as engaged work out in the field, directed
towards the safe transport of hazardous materials. A more narrow interpretation would
defeat the overall purpose of the grants by restricting the flow of money to activities that
the state finds necessary to ensure the safe transport of hazardous materials. Thus, the
"required use" of HMEP grant money, as set out by 49 U.S.C. 5 125(f), must be based on
a broad reading of the Act.
The Factors Used to Evaluate Grant A~plicants
Section 5 125(f)(l)of the Act states that any information regarding fees assessed
by a stateltribal authority from Hazmat transporters should be reported to the Secretary
"on the Secretary's request." 49 U.S.C. 5 5125(f) (2006). A similar statement is included
in Section 5 116(d), which states an entity applying for HMEP grant money must "submit
an application at the time, and contain information, the Secretary requires." 49 U.S.C.
5 116(d) (2006). Through these provisions, the Act gives the Secretary sole discretion
over the collection of information from grant applicants. In other words, Congress did
not mandate that the Secretary be engaged in the collection of information from grant
applicants with a certain level of detail, or with a certain frequency.
The Interested PartyAME comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the fee collected
is used for a purpose related to transporting hazardous material. The plain language of
the Act, as well as applicable Federal Register excerpts, state that this is only one factor
the Secretary may consider in the awarding of or denial of grants. The Secretary may
also consider a variety of other factors, including "the number of hazardous materials
facilities, types and amounts of hazardous materials transported, population at risk,
frequency and number of incidents recorded in past years, high mileage transportation
corridors, whether the State or Indian tribe assesses and collects fees on the transportation
of hazardous materials and whether such assessments or fees are used solely to carry out
purposes related to the transportation of hazardous materials." 57 Fed. Reg. 43064 (Sept.
17, 1992). This statement was codified in section 5 116 of the Act, which states that in
making decisions in regards to the allocation of grants, the Secretary may consider:
(A) the number of hazardous material facilities in the State or on land under the
jurisdiction of the tribe;
(B) the types and amounts of hazardous material transported in the State or on that
land;
(C) whether the State or tribe imposes and collects a fee on transporting
hazardous material;
@) whether the fee is used only to cany out a purpose related to transporting
hazardous material; and
(E) other factors the Secretary decides are appropriate to carry out this subsection.
49 U.S.C.

5 5 116(b)(4)(A)-(E)(2006).

As this provision shows, a variety of factors come into play when assessing the
effective use of HMEP grant money. As a result, it would be improper to state that

PHMSA should measure such effectiveness solely on whether the fee is used solely to
carry out a purpose related to the transportation of hazardous material. Thus, IME's
statement that PHMSA has never applied the statutory criteria when awarding or denying
HMEP grant money is inconclusive.

Pro~osedQuestions for the ICR
The proposed questions included in the IME's comments focus on factors that are
inapplicable to PHMSA's evaluation of the usage of HMEP grant money. While IME
states that the proposed questions only clarify the question currently listed on the ICR',
some of IME's questions are outside the scope of this question. In addition to generally
asking if a hazmat fee is administered in the stateltribal region, and for what purpose the
revenue from the fee is used, IME's proposed questions also ask stateltribal grant
applicants to report the name of the agency that administers each fee. Additionally, grant
applicants should state whether the size of the company is considered when setting the
amount of the fee and disclose the total revenue collected from each fee during the last
fiscal year. (See proposed questions listed in IME's comments 2(a),(c), & (e)).
In its comments, IME has expressed concern that fees could be being used for
purposes not related to the transportation of hazardous materials. However, it is unclear
how the addition of the proposed questions to the ICR would enable PHMSA to glean
any additional information about how effectively HMEP grant money is being spent.
Furthermore, the inclusion of these questions suggests that IME realizes, contrary to its
written comments, that other factors besides the purpose for which grant money is used
should be considered when the Secretary grants HMEP money to statesltribal authorities.
Likewise, the proposed questions in the Interested Party comments also ask for
information that is outside the scope of the current ICR. In addition to the questions
included in IME's comments, the Interested Party comments ask the basis upon which
each stateltribal hazmat fee is assessed. Again, it is unclear how the addition of the
proposed questions will enable PHMSA to learn anything new about the use of the grant
moneys assessed by the stateltribal authority.
As already stated, the Act grants the Secretary the discretion to request any
information from grant applicants that is deemed necessary to aide in the issuance of
HMEP grant money. To exercise this discretion without a legitimate end, such as the
IMEAnterested Party comments advocate, would be an abuse of the Secretary's
discretion. Despite the numerous amendments to the Act over the years, Congress has
allowed this discretionary power to remain in the hands of the Secretary. Because the
Secretary has not asked for additional information to be included on the current ICR,
PHMSA's request for a 3-year extension to the current ICR is appropriate.
Preemptive Powers
Congress granted preemptive powers to DOT/PHMSA through an amendment to
the Act to ensure compliance with the Act's guidelines on the assessment of non-federal
fees. As IME's comments show, such preemptive powers have been used when
necessary. Additionally, the IME comments list instances where parties have taken

' The HMEP grant application currently asks applicants to "Submit a written statement explaining whether
the state assess and collects fees on transportation of hazardous materials and whether such assessment of
fees are used solely to canyout purposes related to the transportation of hazardous materials."

action against the State to ensure that non-federally assessed fees were not discriminatory
or malapportioned. Requiring an increased reporting burden on all grant applicants is
unfair considering that many fees are assessed in compliance with the law. When
fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.

Comments to DOT PHMSA Information Collection Activity Notice
Docket PHMSA-2007-27181
Electronically submitted
Dear PHMSA:
Thank you for this opportunity to comment on what we believe to be a very important notice.
We appreciate this opportunity to comment as we are vitally interested in the health and safety of first
responders. We are the Local Emergency Planning Committee for Jefferson County, Colorado under the
Emergency Planning and Community Right-to-Know Act. In addition we are the Citizen Corp Council
for Jefferson County. In these roles we work with local emergency planning committees, first response
organizations, facilities, and the public regarding emergency planning, response and community right-toknow. We work extensively with local emergency planning committees both in Colorado and throughout
EPA Region VIII.

We are totally dependant on HMEP funding distributed through the states to support our
planning, training and exercise activities. The burdens proposed by the current notice will fall on
organizations just like us as the users of the funding. These burdens are not trivial. We are a
totally volunteer group. Our sister organizations are also volunteer groups. Devoting time and
energy to reports detracts from their other very important missions.
We believe that DOTIPHMSA has broad authority to collect information from grant recipients.
That authority should not be used absent some actual purpose and proposed use for the
information collected especially given the burdens these information requests impose.
The collection of additional information in the manner advocated by petitioner and other
cornrnenters is unjustified because their suggested use of that information is improper. In any
event, as DOTPHMSA notes, you already collect a large percentage of the information
requested. Data collection for the sake of data collection is unreasonable.
We do not believe that DOTPHMSA should impose the burden of information collection
without a clear plan and purpose to use the information in a fashion that comports with statute
and regulation. At this point all we really have is the advocacy of outsiders regarding the use of
the information. Until and unless DOTPHMSA is clear in its plans for the use of the
information it appears that the proposed collection activity is simply an increased burden without
a purpose.
The petitioner and cornmenters characterizes Congress' purpose in enacting the 1990
amendments as funding a federal mandate that enables states to "develop emergency response
plans" and train "emergency responders." However, this statement oversimplifies and narrows
the purpose of the 1990 amendments. Section 117(a) of the HMTA requires the Secretary of
Transportation to make grants to States for "developing, improving, and implementing
emergency response plans under EPCRA, including the determination of flow patterns of

hazardous materials within a State and between a State and another State; and determining the
need for regional hazardous materials response teams." 49 U.S.C. 9 117(a). Section 5125(f) of
the HMTA also states that grant moneys may be used for "enforcement and planning,
developing, and maintaining a capability for emergency response." 49 U.S.C. 3 5 125(f). In a
federal publication, the Agency further explained that the overall purpose of the grants is "to
improve the capability of communities to plan for and respond to the full range of potential risks
posed by accidents and incidents involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17,
1992). It is clear from both the statutory language and the information found in federal
publications that the overall intent of this aspect of the HMTA is one of leniency. It is meant to
allow states to engage in a wide variety of administrative activities and research, as well as
engaged work out in the field, directed towards the safe transport of hazardous materials. A
more narrow interpretation would defeat the overall purpose of the grants by restricting the flow
of money to activities that the state finds necessary to ensure the safe transport of hazardous
materials.
Additionally, the petitioner's comments suggest that the propriety of a state's utilization of nonfederally assessed fees is solely dependent on whether the fee collected is used for a purpose
related to transporting hazardous material. The HMTA, as well as the applicable Federal
Register excerpts, state that this is only one factor to be considered in the awarding of or denying
of grants. A number of other factors are at the discretion of the Secretary of Transportation,
including "the number of hazardous materials facilities, types and amounts of hazardous
materials transported, population at risk, frequency and number of incidents recorded in past
years, high mileage transportation corridors, whether the State or Indian tribe assesses and
collects fees on the transportation of hazardous materials and whether such assessments or fees
are used solely to carry out purposes related to the transportation of hazardous materials." 57 FR
43064 (Sept. 17, 1992). Because a wide variety of factors could come into play when assessing
the propriety of grant awards, it would be incorrect to state that PHMSA should have assessed
grant awards solely on "whether the fee is used only to carry out a purpose related to transporting
hazardous material" and failed to fulfill that duty. 49 U.S.C. 51 16(b)(4)(D).
49 USC 5 125(f)(l) does state that a fee can only be imposed on a hazardous waste transporter if that
fee is used for a purpose related to the transporting of hazardous material. However, this
information only need be reported to the Secretary of Transportation "on the Secretary's request" and
is not "mandated" by the statute. Petitioner and commenters characterizes this reporting
"requirement" as a "congressional mandate," which is not correct. The additional information
should only be collected if it serves some specific purpose - Congress did not mandate information
collection for the sake of information collection.
There are several other more specific arguments put forth by the petitioner and cornmenters that
need to be addressed in greater detail:

1.
"[l:]ninstances where there is no clear demonstration that State-levied hazardous
materials fees are being used as required by [49 U.S.C. 5125(f)], such state[s] should be
prohibited from receiving an award."'
The above argument was specifically rejected by the Research and Special Programs
Administration's ("RSPA") September, 1992 discussion of public comments to the final rule
implementing the Public Sector Training and Planning Grants Program ("PTPG)~. RSPA
responded to the above argument by stating:
RSPA is sensitive to the issue raised by this commenter and will carefully
consider that information in its grants-review process. However, it is not
necessary to revise the rule in the manner suggested by the com~nenter.~
RSPA chose not to revise the rule as suggested because whether a state collects a fee and
how that fee are only some factors to be considered when allocating funds. Other factors
the RSPA considers include: the number of hazardous materials facilities; types and
amounts of hazardous materials transported; population at risk; frequency and number of
incidents recorded in past years; and high mileage transportation corridor^.^ These
factors are also included in the statutory section on monitoring and review of Planning
and Training ~ r a n t s . ~
Although state fees have been invalidated through either the preemption determination process or
by a court, "no state in any year has been denied a PTPG"~a fact which demonstrates that the
RSPA considers all of the above factors when allocating monies, not just state fee collection and
usage. The additional information proposed for collection simply will not inform this analysis
in any way relative to the burdens imposed on the grant recipients.

2.
"[The newly requested fee information] would provide the data necessary for both
the agency and the regulated community to determine if states are in compliance with
applicable provisions of the HMTA."~
The Pipeline and Hazardous Materials Safety Administration ("PHMSA") already receives
almost all of the newly requested information. When discussing the expected burden of
reporting the information the agency stated: "HMEP [Hazardous Materials Emergency
Preparedness] grant recipients are required to submit performance reports, most of which should
include some or all of the information we are requesting."8 The fact that the PHMSA already has
-

-

Letter fiom Interested Parties for Hazardous Materials Transportation, to The Honorable Thomas J. Barrett,
VADM Ret. Administrator, Pipeline and Hazardous Materials Safety Administration, US Department of
Transportation, at 1 (March 23,2007) [hereinafter Industry Letter].
2
Interagency Hazardous Materials Public Sector Training and Planning Grants, 57 Fed. Reg. 43062,43064 (Sept.
17, 1992).
Id.
Id.
49 U.S.C.A. 4 51 16(b)(4)(A-E).
Industry Letter, supra note 1, at 2.
7
Industry Letter, supra note 1, at 3.
Information Collection Activities, 72 Fed. Reg. 36754,36757 (July 5,2007).

'

most of the information suggest that the proposed information collection effort is to appease
industry since "some states were not willing to provide industry with information sufficient to
determine whether states with hazmat fees were complying with the limitations of the HMTA."~
In such cases, the aggrieved industry party should pursue preemption if they think it is
appropriate rather than ask PHMSA to do its bidding.

3.
"Our petition will not have the effect of denying states or Indian tribes funds they
are entitled to receive."1°
This comment is somewhat disingenuous. By advocating an inappropriate standard for
preemption, the effort of collecting information for an invalid purpose will be to deny states and
tribes money to which they are entitled.
Whether or not a state or tribe is denied funding depends on the specifics of the fee in question.
While there appears to be some disagreement regarding which fees might be preempted - in fact
the petitioner and commenters are quite inconsistent on this point - there are some generalities
that are useful in this determination.
The specific section discussing fees is 5 5 125 part (f) which states:
Fees.--(l) A State, political subdivision of a State, or Indian tribe may impose a
fee related to transporting hazardous material only if the fee is fair and used for a
purpose related to transporting hazardous material, including enforcement and
planning, developing, and maintaining a capability for emergency response.
The key determinations are whether the fee is "fair" and whether used for "a purpose related to
transporting hazardous material." Any fee that is not "fair," or that is "used for" purposes other
than those specified in the 5 5125(f), is preempted under 49 U.S.C. 5125(a)(2) which states:
(a) General.--Except as provided in subsections (b), (c), and (e) of this section and
unless authorized by another law of the United States, a requirement of a State,
political subdivision of a State, or Indian tribe is preempted if-

(2) the requirement of the State, political subdivision, or tribe, as applied or
enforced, is an obstacle to accomplishing and carrying out this chapter, a
regulation prescribed under this chapter, or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland Security.
Basically there are three categories of preemption under 5 125(a) and (b). First, is the
"dual compliance test" which preempts a law when it is not possible to comply with both
the non-Federal requirement and the Federal hazmat law or a regulation prescribed under

9

lo

Industry Letter, supra note 1 , at 2.
Id., at 3.

federal hazmat law." Second, is the "obstacle test" which preempts a non-Federal
requirement if its application or enforcement is an obstacle to accomplishing and carrying
out the Federal hazmat law or a regulation prescribed under Federal hazmat law.'' Third
is the "covered subjects test" which preempts a non-Federal requirement if it concerns
any of the five covered subjects and is not "substantively the same as" the Federal hazmat
law or regulations' requirements.13
Using existing information sources, State and tribal fees have been found to be preempted by
both courts and the RSPA through the preemption determination process under 49 U.S.C
5125(d)(l). RSPA has found that fees which fail the fairness or "used for" test in 49 U.S.C.
5125(f)(1)14, create an obstacle to carrying out the Federal hazardous materials transportation
law and thus fail the "obstacle test" under 49 U.S.C. 8 5125(a)(2). The Supreme Court in
Evansville-Vanderburnhcame up with a test to determine whether a fee is fair.15 Under the
Evansville test, a fee is fair if it is:
(a) based on fair approximation of use of facilities;
(b) not excessive in relation to benefits conferred;
(c) does not discriminate against interstate commerce16
The most common grounds for preemption is when the fee is not based on some fair
approximation of the use of facilities as is required under 49 U.S.C. 8 5125(f)(1).17
A State may impose flat fees when "administrative difficulties make collection of more finely
calibrated user charges impracticable."18 The state bears the burden of demonstrating the
practical impossibility of employing any form of apportionment that would render its tax better
"calibrated" than a flat tax.19 The Court has indicated that flat taxes are permissible when they
are shown to be "the only practicable means of collecting revenues from users and the use of a
more finely gradated user-fee schedule would pose genuine administrativeburdens.""
Conclusion

11

Index to Preemption of State and Local Laws and Regulations Under the Federal Hazardous Material
Transportation Law, PHMSA Office of Chief Council, available at http://rspa~ d .
(0FEES. (1) A State, political subdivision of a State, or Indian tribe may impose a fee related to transporting
hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for
emergency response.
l5 Evansville-Vanderburgh Airport Auth. V. Delta Airlines, Inc. 405 U.S. 707 (1972).
Id.
l7 zd.
l 8 American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266,297 (1987).
19
American Trucking Ass'ns v. Secretary of Administration, 613 N.E.2d, 95, 100 (Mass. 1993).
20 American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S., at 296.
l3

l4

The party challengin the validity of a state statute on Commerce Clause grounds bears
the burden of proof.2 f The criteria under which fees will be evaluated are not specific,
which justifies the broad discretion given to the Secretary to determine whether the
purpose of the fee relates to hazardous materials transportation.
States, tibes and local governments plan, train and exercise to deal with the risks of
hazardous materials in transportation. Contrary to the narrative in the current notice,
DOTiPHMSA does already require that states and tibes broadly report on their use of
funds for planning, training, and exercises. Current reporting is more than adequate for a
determination under the second preemption test as evidenced by preemption actions to
this point.
As petitioner's comments show, such preemptive powers have been used when
necessary. Additionally, the petitioners listed a few instances where parties had taken
action against the State to ensure that non-federally assessed fees were not discriminatory
or malapportioned. Requiring an increased time-reporting burden on all grant applicants
is unfair considering that most fees are assessed in compliance with the law. When
fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.
The petitioner and commenters certainly wish to ease their burden in challenging fees. They
mischaracterize the obligations of DOTIPHMSA to collect data to make a preemption evaluation
as mandatory. In these entities are unhappy about a specific state fee they should challenge it
rather than attempt to shift the burdens of these arguments to states and tribes.
Congress has given the agency broad discretion to evaluate both grants and the question
of preemption. Existing data collection would appear to be fully adequate to serve the
agency's needs in this regard. Until such time that DOTiPHMSA can articulate a specific
use for the information that is consistent with the statute and regulations, the increased
burdens should not be imposed.

American Trucking Ass'ns, Inc. v. State, 180 N.J. 377,396 (N.J., 2004).

Thanks you for allowing this response on this notice. HMEP funding for Oklahoma
is almost mandatory, because without it a local level there would be little or
no training. This state would have little or no funds to be used for hazardous
materials planning and training. LEPC1s in Oklahoma are a wonderful because
they share information gained in their meetings with other who do not have such
a device at there fingertips.
The proposed collection requirement places and unnecessary burden again on the
grant recipient. If there are problems then the state should be able step in to
provide help if needed in such a case.1 for one do not think there will ever be
any good out of fighting with the boards members of any corporation, state, or
government entity. So the moral of the story if is not broke don't fix it

Comments re Docket# PHMSA-2007-27 181 (Notice No. 07-5)- Notice and request for
comments
SUBJECT: Information Collection Activities: On Line Submission www.regulations.gov
To the record:
I have been closely associated with the Emergency Planning and Community Right to Know
Act, State Emergency Response Commission activities and Local Emergency Planning
Committee actions since the inception of the program. I am also a past president of the National
Association of SARA Title Three Program Officials, serve as Executive Director to the Arizona
Emergency Response Commission and am proud to be associated with grassroots planners and
responders throughout the nation. I also recognize and appreciate the value of the Hazardous
Materials Emergency Preparedness Grants Program and know that without it, hazardous
materials planning and training throughout the nation would be crippled. If burdened by
unnecessary reporting and additional requirements, the simplicity of delivering what is statutorily
and clearly outlined for grants recipients, will cause planners and responders to take away scarce
and valuable resources from their primary missions. These comments are my own and do not
necessarily reflect the formal position of the Arizona Emergency Response Commission nor the
position of the State of Arizona.
The proposed notice is going to place quite a burden not only on states, but on all hnding
recipients, to include tribes, locals and others. As you look at the collection of data being
suggested, the burden is not small and before demands are placed, extremely careful
consideration should be given to placing yourself in the shoes of those you are asking to provide
the data so as to fully understand the negative impact on the program that increasing reporting
requirements will have. Funds that clearly are productively used for planning and training
fhnctions and are now adequately documented will be diverted to administrative burdens, the
utility of which is quite questionable.
May I suggest that if needed, PHMSA should have the industries claiming that they pay fees to
the states and tribes (and perhaps Local entities), identify themselves to PHMSA, at the Secretary
of Transportation's request. The facility could identify the stateltribe and agency to which they
pay those fees and the amount of those fees, so that USDOT nationally could wrap its arms
around the issue to determine if there is, in fact, an identifiable problem. That information can
then be provided back through the states and tribes for discussions with the entities collecting
and providing fees. I imagine that whatever questions needed to be asked before those fees were
paid, were asked, or should have been, by the industry making the payment. I would think that if
there were challenges to the fees being made, they would have been addressed and dealt with at
the time of billing. The entity paying the fee should clearly be able to be responsive to DOT to
explain why that fee was paid. Why is this being asked now? Are there local fees, tribal fees, as
well? In support of national public-private partnership goals, let the businesses identify
themselves to USDOT so that all the playing cards are clearly on the table. Provision of this
information to USDOTPHMSA directly to establish a central information repository from the

source to the grantor would appear to be the mechanism to be followed without burdening states
and tribes. Based on PHMSA's notice, this doesn't appear to impact that many states, so the
burden shouldn't be excessive if centralized at PHMSA. States and tribes are pretty busy doing
the planning, training, responding and exercising to ensure that those businesses, transporters and
communities through which hazardous materials are transported are kept safe.
While some may casually refer to inputs to the program reports as just anecdotal, it is the
response community that on a daily basis handles transportation related hazardous materials
accidents professionally so as to keep their communities and the environment from being harmed
further when there is a release of a hazardous material, whether fiom a fixed facility or fiom a
transportation related incident. The absolute professionalism and manner in which our
responders react perhaps lulls us into thinking it's easy. A skilled aviator makes takeoff, landing
and enroute actions appear routine. Let's not forget the planning and training that must be 'under
the responder's belt' to ensure community safety. The capabilities demonstrated by the response
community are not because they fill out forms, but rather because they attend courses supported
by U.S. DOT'S Hazardous Materials Emergency Preparedness (HMEP) Grants Program and
accomplish the planning activities mandated by grants guidelines. Let's not increase their
administrative burden. Keep in mind that grants are frequently pass-through so this new and
increased burden being proposed/noticed will ultimately rest on the shoulders of the folks who
don't need more administrative requirements levied upon them.
I believe that the statutes and regulations that govern the HMEP grants are clear, relatively

simple and designed and implemented to meet mission goals, and have done so remarkably well
over the years, under consistently strong management at USDOT as well as at recipient level.
The current funding levels sadly fall short of meeting needs and imposition of information
collection burdens will only ensure that the program finding recipients will fall shorter of
meeting needs and fall short of achieving program goals since sparse resources will be diverted
to meet questionable increased requirements. We have enough federal examples of how
excessive data collection burdens overburden programs without clearly recognizable value.
Reporting begets more reporting. The daily newspapers show that hazmat planning and response
is working, albeit shortfalls.
The flexibility of the HMEP funds has enabled grants recipients to shape programs that meet the
needs of their citizens. What's broken? The program sure seems to be working; as a matter of
fact, the HMEP program is working far better than many other programs in existence.
Narrowing the paths that grants recipients can take should not be a consideration as it removes
the flexibility that Congress certainly appeared to want grantees to have.
Grants recipients provide reports to PHMSA on a routine basis and this has met the needs for a
decade. Of what value is the increased reporting? What might be of great value is looking into
the reauthorization of the Emergency Planning and Community Right to Know Act (EPCRA)
and requiring transportation entities to be more of an integral part of the process, rather than only
be subjected to making the initial emergency notification of a release. Partnering with
transportation entities, transporters, rail, and road tqansporters in a regulated, statutorily governed
manner would clearly identify and map out the coordination, planning, and partnerships required,
rather than the current, somewhat haphazard manner in which it is now addressed. Removing

the transportation exemptions to EPCRA would serve to clarify regulatory requirements and
would improve community safety, and I daresay, national safety and readiness. Bringing the
hazardous materials transport entities to the planning table would benefit both the industry and
the communities through which hazardous materials are transported. The transportation
industry, if at the table and looking directly into the faces of the communities that are impacted,
would develop a greater understanding of the planning and training needs within those
communities because of the hazardous materials transportation threats. In the long run, this
would also be quite responsive to NTSB7srecommendations addressed in the section of the
notice, HMEP PERFORMANCE REPORTS.
I believe there should be further discussion as to how the additional information required by
PHMSA is to be collected before burdening the grantee with that data collection.
I would also be interested in receiving information on how it was determined that only three
hours would be added to the total time required for each grant recipient to complete its
performance report. (OVERALL PROGRAM EVALUTION). I believe that's quite an
underestimation as is often the case in requests such as these.
Before there is an over-reaction to meet a petitioner's request, I believe that this notice should be
further studied by PHMSA/DOT before determining that any additional information will be
requested beginning in 2008. Perhaps those with comments on this subject should be brought
together in a stakeholder's forum supported by the industry and PHMSA to discuss mutual
needs, community safety and long-range program goals.
Respectfully submitted,
Dan Roe
[email protected]

STATE OF WISCONSIN \ DEPARTMENT OF MILITARY AFFAIRS
.

~51411ONWISCONSIN EMERGENCY MANAGEMENT

,

i,: ~ - , r S T S

Zf~fif SEP -u A 4: 0 0

2400 WRTGHT STREET
P.O.BOX 7865

MADISON, WISCONSIN 53707-7865
hm://emeraencvman~ent,wi.eov/

August 31,2007

Dept of Transportation
PHMSA Information Collection Activity Notice
Docket PHMSA-2007-2718
1- b
h a r PHMSA:

Thank you for the opportunity to comment on this notice. HMEP funding provides critical hazardous
materials planning and training funds to Local Em~gencyPlanning Committees (LEPC9s)and to
Wisconsin Emergency Management. There are no other state funds available to replace this funding
sbuld it be reduced or eliminated.

The proposed collection rqirement places an unnecessary burden on the grant recipient. The
collection requirement and how it is interpreted is subjective in detemhkg how a state fee is being
used. in the case where the regulated community does not believe that the f e is wed appropriately,
then legal remedies should be pursued. It would be inappropriate to withhold crr reduce a state's HMEP
funding not supported by the appropriate legal action. 1t should be noted that this process worked itself
out in Wisconsin when a challenge was made to the Wisconsin Hazardous Materials TrausportationFee.
This was determined to be inconsistent with the law and i.sno longer i.nplace. This i.sthe appropriate
mechanism for the regulated community to take is they believe that a fee is inconsistent. Whatever the
process or remedies, there i s no reason why the emergency management community should be penalized
by lost or reduced %ding and why essential planning and training should not be performed.

The HMEP grants provide csscntial funding to the state of Wisconsin and I appreciate the opportunity to
provide comments on the notice.

Sincerely,

Johnnie L. Smith
Administr&r

Wisconsin Emegency Management

Comments to DOT PHMSA HMEP Notice:

I am James Plum, Chairman of the Jefferson County, Indiana LEPC. Without the
HMEP program we would have few resources for doing planning and training in our
county.
I am sensitive to the industry desire not to pay more than its fair share of
fees. Of course, when it comes to hazmat incidents on the streets and highway,
these very same industries are fully responsible. When they think they are
being unfairly charged for the costs of a response and cleanup, they are eager
to point the finger at local agencies for a failure to have adequate plans and
training.
We are a rural county and both the LEPC and the Hazmat response team are made up
of volunteers. Without the HMEP resources it would be difficult to accomplish
the required training and planning that needs to be done to respond effectively
to hazmat incidents. As HMEP funding is the bulk of the resources we have,
industry's efforts to penalize the us by artificially evaluating the use of
funds, is ill-conceived at best.
DOT has authority to collect information. They should impose these burdens only
when there is a clear intent to use the information for a reasonable purpose
that is consistent with the statute and regulations.
James J. Plum
Chairman: Jefferson County, Indiana LEPC
[email protected]
812-265-8878

I am Arthur D. Paul, Delaware emergency Management Agency. Absent the HMEP
program, Delaware LEPCs would not have the resources for planning and training
activities.
I am sensitive to the industry desire not to pay more than its fair share of fees. Of course,
when it comes to hazmat incidents on the streets and highway, these very same industries
are fully responsible. When they think they are being unfairly charged for the costs of a
response and cleanup, they are eager to point the finger at local agencies for a failure to
have adequate plans and training.

In the rural parts of the country these groups are almost entirely made up of volunteers.
Industry can't have it both ways. Without resources these agencies can't possibly plan
and train. As HMEP funding is the bulk of the resources they have, industry's efforts to
penalize states by artificially evaluating the use of funds, is ill-conceived at best.
DOT has authority to collect information. They should impose these burdens only when
there is a clear intent to use the information for a reasonable purpose that is consistent
with the statute and regulations.

The Purpose of State-Tribal Assessed Hazmat Fees
The Interested PartyIIME comments characterize Congress' purpose in enacting
the 1990 amendments to the Hazardous Materials Transportation Act ("Act") as funding a
federal mandate that enables states to "develop emergency response plans" and train
"emergency responders." However, this statement oversimplifies and narrows the
purpose of the 1990 amendments. The plain language of the Act and the pertinent federal
publication list a variety of uses for HMEP grant money that are far broader in scope.
In a federal publication, the Department of Transportation ("DOT") asserted that
the overall purpose of the grants is "to improve the capability of communities to plan for
and respond to thefill range ofpotential risks posed by accidents and incidents
involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17, 1992) (emphasis added).
This broad purpose is articulated by the Act through its statutory provisions. For
example, section 5 116(a) of the Act requires the Secretary of Transportation
("Secretary") to issue grants to statesttribal authorities for "developing, improving, and
implementing emergency response plans under EPCRA, including the determination of
flow patterns of hazardous materials within a State and between a State and another State;
and determining the need for regional hazardous materials response teams." 49 U.S.C. 5
5 116(a) (2006). Section 5 125(f) of the Act states that grant money may be used for
"enforcement and planning, developing, and maintaining a capability for emergency
response." 49 U.S.C. 5 5125(f) (2006). HMEP grant money should be used to train
public sector employees to respond to accidents and incidents involving hazardous
material. 49 U.S.C. 5 51 16(b)(l) (2006). Grant money can also be used to pay the
tuition costs and travel expenses of both those attending and those providing such
training. 49 U.S.C. 5 5 116(b)(3)(A)(i)-(iv) (2006).
Both the statutory language and the information found in federal publications
reveal that the overall intent of this aspect of the Act is one of leniency. The grants
provided by PHMSA are meant to allow states to engage in a wide variety of

administrative activities and research, as well as engaged work out in the field, directed
towards the safe transport of hazardous materials. A more narrow interpretation would
defeat the overall purpose of the grants by restricting the flow of money to activities that
the state finds necessary to ensure the safe transport of hazardous materials. Thus, the
"required use" of HMEP grant money, as set out by 49 U.S.C. 5 125(f),must be based on
a broad reading of the Act.
The Factors Used to Evaluate Grant Applicants
Section 5 125(f)(l) of the Act states that any information regarding fees assessed
by a stateltribal authority from Hazmat transporters should be reported to the Secretary
"on the Secretary's request." 49 U.S.C. 5 5 125(f) (2006). A similar statement is included
in Section 5 1 16(d), which states an entity applying for HMEP grant money must "submit
an application at the time, and contain information, the Secretary requires." 49 U.S.C.
5 116(d) (2006). Through these provisions, the Act gives the Secretary sole discretion
over the collection of information from grant applicants. In other words, Congress did
not mandate that the Secretary be engaged in the collection of information from grant
applicants with a certain level of detail, or with a certain frequency.
The Interested PartyIIME comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the fee collected
is used for a purpose related to transporting hazardous material. The plain language of
the Act, as well as applicable Federal Register excerpts, state that this is only one factor
the Secretary may consider in the awarding of or denial of grants. The Secretary may
also consider a variety of other factors, including "the number of hazardous materials
facilities, types and amounts of hazardous materials transported, population at risk,
frequency and number of incidents recorded in past years, high mileage transportation
corridors, whether the State or Indian tribe assesses and collects fees on the transportation
of hazardous materials and whether such assessments or fees are used solely to carry out
purposes related to the transportation of hazardous materials." 57 Fed. Reg. 43064 (Sept.
17, 1992). This statement was codified in section 5 116 of the Act, which states that in
making decisions in regards to the allocation of grants, the Secretary may consider:
(A) the number of hazardous material facilities in the State or on land under the
jurisdiction of the tribe;
(B) the types and amounts of hazardous material transported in the State or on that
land;
(C) whether the State or tribe imposes and collects a fee on transporting
hazardous material;
@) whether the fee is used only to carry out a purpose related to transporting
hazardous material; and
(E) other factors the Secretary decides are appropriate to carry out this subsection.
49 U.S.C.

5 5 1 16(b)(4)(A)-(E) (2006).

As this provision shows, a variety of factors come into play when assessing the
effective use of HMEP grant money. As a result, it would be improper to state that
PHMSA should measure such effectiveness solely on whether the fee is used solely to

carry out a purpose related to the transportation of hazardous material. Thus, IME's
statement that PHMSA has never applied the statutory criteria when awarding or denying
HMEP grant money is inconclusive.
Pro~osedQuestions for the ICR
The proposed questions included in the IME's comments focus on factors that are
inapplicable to PHMSA's evaluation of the usage of HMEP grant money. While IME
states that the proposed questions only clarify the question currently listed on the ICR',
some of IME's questions are outside the scope of this question. In addition to generally
asking if a hazmat fee is administered in the stateltribal region, and for what purpose the
revenue from the fee is used, IME's proposed questions also ask stateltribal grant
applicants to report the name of the agency that administers each fee. Additionally, grant
applicants should state whether the size of the company is considered when setting the
amount of the fee and disclose the total revenue collected from each fee during the last
fiscal year. (See proposed questions listed in IME's comments 2(a),(c), & (e)).
In its comments, IME has expressed concern that fees could be being used for
purposes not related to the transportation of hazardous materials. However, it is unclear
how the addition of the proposed questions to the ICR would enable PHMSA to glean
any additional information about how effectively HMEP grant money is being spent.
Furthermore, the inclusion of these questions suggests that IME realizes, contrary to its
written comments, that other factors besides the purpose for which grant money is used
should be considered when the Secretary grants HMEP money to statesltribal authorities.
Likewise, the proposed questions in the Interested Party comments also ask for
information that is outside the scope of the current ICR. In addition to the questions
included in IME's comments, the Interested Party comments ask the basis upon which
each stateltribal hazmat fee is assessed. Again, it is unclear how the addition of the
proposed questions will enable PHMSA to learn anything new about the use of the grant
moneys assessed by the stateltribal authority.
As already stated, the Act grants the Secretary the discretion to request any
information from grant applicants that is deemed necessary to aide in the issuance of
HMEP grant money. To exercise this discretion without a legitimate end, such as the
IMEhnterested Party comments advocate, would be an abuse of the Secretary's
discretion. Despite the numerous amendments to the Act over the years, Congress has
allowed this discretionary power to remain in the hands of the Secretary. Because the
Secretary has not asked for additional information to be included on the current ICR,
PHMSA's request for a 3-year extension to the current ICR is appropriate.
Preem~tivePowers
Congress granted preemptive powers to DOTPHMSA through an amendment to
the Act to ensure compliance with the Act's guidelines on the assessment of non-federal
fees. As IME's comments show, such preemptive powers have been used when
necessary. Additionally, the IME comments list instances where parties have taken
action against the State to ensure that non-federally assessed fees were not discriminatory
The HMEP grant application currently asks applicants to "Submit a written statement explaining whether
the state assess and collects fees on transportation of hazardous materials and whether such assessment of
fees are used solely to carryout purposes related to the transportation of hazardous materials."

or malapportioned. Requiring an increased reporting burden on all grant applicants is
unfair considering that many fees are assessed in compliance with the law. When
fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.

Comments to DOT PHMSA Information Collection Activity Notice
Docket PHMSA-2007-27181
Electronically submitted
Dear PHMSA:
Thank you for this opportunity to comment on what we believe to be a very important
notice.
The Oklahoma Hazardous Materials Emergency Response Commission is composed of
representatives from the Oklahoma Department of Environmental Quality, the Oklahoma
Emergency Management Agency, The Oklahoma Department of Public Safety, the
Oklahoma State Fire Marshall, the Oklahoma Office of Homeland Security, local
emergency responders and the regulated community. The Commission works to assist
Oklahomans in preparation for possible emergencies and disasters involving hazardous
materials, whether they are accidental releases or result fiom terrorist acts. The
Commission oversees the distribution of HMEP grants to Local Emergency Planning
Committees specifically for planning for hazardous materials incidents and for training of
local responders. The majority of local fire departments in Oklahoma are volunteer
departments, the only hazardous materials training available to them is the training
provided by HMEP funding. The rural, volunteer fire departments are expected to
respond to transportation incidents throughout the state.
Local emergency responders and planning committees are almost entirely dependant on
HMEP funding distributed through the state. The burdens proposed by the current notice
will fall on not just state agencies. Rather, it will fall primarily on local organizations
that are users of the hnding. These burdens are not trivial. Our Local Emergency
Planning Committees and most of our rural fire departments are volunteer groups.
Devoting time and energy to reports detracts from their other very important missions.
We believe that DOTPHMSA has broad authority to collect information fiom grant
recipients. That authority should not be used absent some actual purpose and proposed
use for the information collected.
The collection of additional information in the manner advocated by petitioner and other
commenters is unjustified because their suggested use of that information is improper. In
any event, as DOTPHMSA notes, you already collect a large percentage of the
information requested. Data collection for the sake of data collection is unreasonable.
We do not believe that DOTPHMSA should impose the burden of information collection
without a clear plan and purpose to use the information in a fashion that comports with
statute and regulation. At this point all we really have is the advocacy of outsiders
regarding the use of the information. Until and unless DOTPHMSA is clear in its plans
for the use of the information it appears that the proposed collection activity is simply an
increased burden without a purpose.

Petitioner and commenters improperly characterizes the 1990 amendments by making it
seem as though the only important criteria for evaluating registration fees is whether the fee
collected is used for a purpose related to transporting hazardous material. The actual statute
and applicable FR excerpts state that this is only one factor to consider, giving the Secretary
of Transportation wide discretion in this area. 57 FR 43064 lists many possible factors that
could be taken into consideration by the Secretary for this purpose. Any increased data
collection effort needs to reflect this broad discretion and be focused upon some specific
application of that discretion.
49 USC 5 125(f)(1) does state that a fee can only be imposed on a hazardous waste transporter
if that fee is used for a purpose related to the transporting of hazardous material. However,
this information only need be reported to the Secretary of Transportation "on the Secretary's
request" and is not "mandated" by the statute. Petitioner and commenters characterizes this
reporting "requirement" as a "congressional mandate," which is not correct. The additional
information should only be collected if it serves some specific purpose - Congress did not
mandate information collection for the sake of information collection.
There are several arguments put forth by the petitioner and commenters that need to be
addressed in greater detail:

1.
"[Iln instances where there is no clear demonstration that State-levied
hazardous materials fees are being used as required by 49 U.S.C. 5125(f)], such
state[s] should be prohibited from receiving an award." 'I

t

The above argument was specifically rejected by the Research and Special Programs
Administration's ("RSPA") September, 1992 discussion of public comments to the final
rule implementing the Public Sector Training and Planning Grants Program ("PTPG")~~].
RSPA responded to the above argument by stating:

RSPA is sensitive to the issue raised by this commenter
and will carefully consider that information in its grantsreview process. However, it is not necessary to revise the
rule in the manner suggested by the c~rnmenter.[~l
RSPA chose not to revise the rule as suggested because whether a state collects a
fee and how that fee are only some factors to be considered when allocating
finds. Other factors the RSPA considers include: the number of hazardous
materials facilities; types and amounts of hazardous materials transported;
population at risk; frequency and number of incidents recorded in past years; and

Letter from Interested Parties for Hazardous Materials Transportation, to The Honorable Thomas J.
Barrett, VADM Ret. Administrator, Pipeline and Hazardous Materials Safety Administration, US
Department of Transportation, at 1 (March 23,2007) [hereinafter Indusw Letter].
['I Interagency Hazardous Materials Public Sector Training and Planning Grants, 57 Fed. Reg. 43062,
43064 (Sept. 17, 1992).
I3] Id.
['I

high mileage transportation corridors.[41These factors are also included in the
statutory section on monitoring and review of Planning and Training ~rants.[']
Although state fees have been invalidated through either the preemption determination
process or by a court, "no state in any year has been denied a PTPG"[~]a fact which
demonstrates that the RSPA considers all of the above factors when allocating monies,
not just state fee collection and usage. The additional information proposed for
collection simply will not inform this analysis in any way relative to the burdens imposed
on the grant recipients.
2.
"[The newly requested fee information] would provide the data necessary for
both the agency and the regulated community to determine if states are in
compliance with applicable provisions of the HMTA."[~]
The Pipeline and Hazardous Materials Safety Administration ("PHMSA") already
receives almost all of the newly requested information. When discussing the expected
burden of reporting the information the agency stated: "HMEP [Hazardous Materials
Emergency Preparedness] grant recipients are required to submit performance re orts,
most of which should include some or all of the information we are requesting." The
fact that the PHMSA already has most of the information suggest that the proposed
information collection effort is to appease industry since "some states were not willing to
provide industry with information sufficient to determine whether states with hazmat fees
were complying with the limitations of the HMTA."[~]In such cases, the aggrieved
industry party should pursue preemption if they think it is appropriate rather than ask
PHMSA to do its bidding.

W

3.
"Our petition will not have the effect of denying states or Indian tribes funds
they are entitled to receive."[101

This comment is somewhat disingenuous. By advocating an inappropriate standard for
preemption, the effort of collecting information for an invalid purpose will be to deny
states and tribes money to which they are entitled.
Whether or not a state or tribe is denied fbnding depends on the specifics of the fee in
question. While there appears to be some disagreement regarding which fees might be
preempted - in fact the petitioner and commenters are quite inconsistent on this point there are some generalities that are usefbl in this determination.
The specific section discussing fees is 5 5125 part (f) which states:
[41 Id.

5 5 116(b)(4)(A-E).
Letter, supra note 1 , at 2.
['I Industry Letter, supra note 1 , at 3.
['I information Collection Activities, 72 Fed. Reg. 36754,36757 (July 5,2007).
[91 Industry Letter, supra note 1 , at 2.
[Io1 ~ d .at
, 3.
['I 49 U.S.C.A.
[61 Industry

Fees.--(I) A State, political subdivision of a State, or
Indian tribe may impose a fee related to transporting
hazardous material only if the fee is fair and used for a
purpose related to transporting hazardous material,
including enforcement and planning, developing, and
maintaining a capability for emergency response.
The key determinations are whether the fee is "fair" and whether used for "a purpose
related to transporting hazardous material." Any fee that is not "fair," or that is "used
for'' purposes other than those specified in the 8 5 125(f), is preempted under 49 U.S.C.
5 125(a)(2) which states:

General.--Except as provided in subsections (b), (c),
and (e) of this section and unless authorized by another
law of the United States, a requirement of a State, political
subdivision of a State, or Indian tribe is preempted if(a)

(2) the requirement of the State, political subdivision, or tribe, as applied
or enforced, is an obstacle to accomplishing and carrying out this chapter,
a regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the Secretary of
Homeland Security.
Basically there are three categories of preemption under 8 5 125(a) and (b). First,
is the "dual compliance test" which preempts a law when it is not possible to
comply with both the non-Federal requirement and the Federal hazmat law or a
regulation prescribed under Federal hazmat law.[''] Second, is the "obstacle test"
which preempts a non-Federal requirement if its application or enforcement is an
obstacle to accomplishing and carryin out the Federal hazmat law or a regulation
prescribed under Federal hazmat law.[ 21 Third is the "covered subjects test"
which preempts a non-Federal requirement if it concerns any of the five covered
subjects and is not "substantively the same as" the Federal hazmat law or
regulations' requirements.[131

7

Using existing information sources, State and tribal fees have been found to be preempted
by both courts and the RSPA through the preemption determination process under 49
U.S.C 5 125(d)(l). RSPA has found that fees which fail the fairness or "used for" test in
49 U.S.C. 5125(f)(1)['41,create an obstacle to carrying out the Federal hazardous
[' 'I Index to Preemption of State and Local Laws and Regulations Under the Federal Hazardous Material
Transportation Law, PHMSA Office of Chief Council, available at http://rspa-

[I3]

Id.

[I4] ( f ) FEES. (1) A State, political subdivision of a State, or Indian tribe may impose a fee related to
transporting hazardous material only if the fee is fair and used for a purpose related to transporting
hazardous material, including enforcement and planning, developing, and maintaining a capability for

materials transportation law and thus fail the "obstacle test" under 49 U.S.C. 5
5 125(a)(2). The Supreme Court in Evansville-Vanderburgh came up with a test to
determine whether a fee is fair.[''] Under the Evansville test, a fee is fair if it is:
(a) based on fair approximation of use of facilities;
(b) not excessive in relation to benefits conferred;
(c) does not discriminate against interstate commerce['61
The most common grounds for preemption is when the fee is not based on some fair
approximation of the use of facilities as is required under 49 U.S.C. 5 5 125(f)(1).[17]
A State may impose flat fees when "administrativedifficulties make collection of more
finely calibrated user charges impracticable."['81 The state bears the burden of
demonstrating the practical impossibility of employin any form of apportionment that
would render its tax better "calibrated" than a flat taxR91 The Court has indicated that flat
taxes are permissible when they are shown to be "the only practicable means of collecting
revenues from users and the use of a more finely gradated user-fee schedule would pose
genuine administrative burdens."[201
Summary

The party challenging the validity of a state statute on Commerce Clause grounds
bears the burden of
The criteria under which fees will be evaluated are
not specific, which justifies the broad discretion given to the Secretary to
determine whether the purpose of the fee relates to hazardous materials
transportation.
States, tribes and local governments plan, train and exercise to deal with the risks
of hazardous materials in transportation. Contrary to the narrative in the current
notice, DOTPHMSA does already require that states and tribes broadly report on
their use of funds for planning, training, and exercises. Current reporting is more
than adequate for a determination under the second preemption test as evidenced
by preemption actions to this point.
The petitioner and commenters certainly wish to ease their burden in challenging
fees. They mischaracterize the obligations of DOTPHMSA to collect data to
make a preemption evaluation as mandatory. If these entities are unhappy about
a specific state fee they should challenge it rather than attempt to shift the burdens
of these arguments to states and tribes.
emergency response.
[I5' Evansville-Vanderburgh Airport Auth. V. Delta Airlines, Inc. 405 U.S. 707 (1972).
[I6] Id.
[I7] Id.
I''[ American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266,297 (1987).
[I9' American Trucking Ass'ns v. Secretary of Administration, 613 N.E.2d, 95, 100 (Mass. 1993).
American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S., at 296.
r2'1 American Trucking Ass'ns, Inc. v. State, 180 N.J. 377,396 (N.J., 2004).

Congress has given the agency broad discretion to evaluate both grants and the
question of preemption. Existing data collection would appear to be fully
adequate to serve the agency's needs in this regard. Until such time that
DOTPHMSA can articulate a specific use for the information that is consistent
with the statute and regulations, the increased burdens should not be imposed.
Sincerely,
Montressa Jo Elder, Chairman
Oklahoma Hazardous Materials Emergency Response Commission

Absent the HMEP program, LEPCs would have no resources for planning and training
activities.
I am sensitive to the industry desire not to pay more than its fair share of
fees. Of course, when it comes to hazmat incidents on the streets and highway,
these very same industries are fully responsible. When they think they are
being unfairly charged for the costs of a response and cleanup, they are eager
to point the finger at local agencies for a failure to have adequate plans and
training.
In the rural parts of the country these groups are almost entirely made up of
volunteers.
Industry can't have it both ways. Without resources these
agencies can't possibly plan and train. As HMEP funding is the bulk of the
resources they have, industry's efforts to penalize states by artificially
evaluating the use of funds, is ill-conceived at best.
DOT has authority to collect information. They should impose these burdens only
when there is a clear intent to use the information for a reasonable purpose
that is consistent with the statute and regulations.
The Purpose of State-Tribal Assessed Hazmat Fees
The Interested Party/IME comments characterize Congress' purpose in enacting the
1990 amendments to the Hazardous Materials Transportation Act ("Act") as funding
a federal mandate that enables states to "develop emergency response plans" and
train "emergency responders." However, this statement oversimplifies and
narrows the purpose of the 1990 amendments. The plain language of the Act and
the pertinent federal publication list a variety of uses for HMEP grant money
that are far broader in scope.
In a federal publication, the Department of Transportation ("DOT") asserted that
the overall purpose of the grants is "to improve the capability of communities
to plan for and respond to the full range of potential risks posed by accidents
and incidents involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17,
1992) (emphasis added). This broad purpose is articulated by the Act through
its statutory provisions. For example, section 5116(a) of the Act requires the
Secretary of Transportation ("Secretary") to issue grants to states/tribal
authorities for "developing, improving, and implementing emergency response
plans under EPCRA, including the determination of flow patterns of hazardous
materials within a State and between a State and another State; and determining
the need for regional hazardous materials response teams." 49 U.S.C. 5 5116(a)
(2006). Section 5125(f) of the Act states that grant money may be used for
"enforcement and planning, developing, and maintaining a capability for
emergency response." 49 U.S.C. S 5125(f) (2006). HMEP grant money should be
used to train public sector employees to respond to accidents and incidents
involving hazardous material. 49 U.S.C. S 5116(b)(l) (2006). Grant money can
also be used to pay the tuition costs and travel expenses of both those
attending and those providing such training. 49 U.S .C. S 5116 (b)(3)(A)(i)- (iv)
(2006).
Both the statutory language and the information found in federal publications
reveal that the overall intent of this aspect of the Act is one of leniency.
The grants provided by PHMSA are meant to allow states to engage in a wide
variety of administrative activities and research, as well as engaged work out
in the field, directed towards the safe transport of hazardous materials. A
more narrow interpretation would defeat the overall purpose of the grants by
restricting the flow of money to activities that the state finds necessary to
ensure the safe transport of hazardous materials. Thus, the "required use" of
HMEP grant money, as set out by 49 U.S.C. 5125(f), must be based on a broad
reading of the Act.

The Factors Used to Evaluate Grant Applicants
Section 5125(f)(1) of the Act states that any information regarding fees
assessed by a state/tribal authority from Hazrnat transporters should be reported
to the Secretary "on the Secretary's request." 49 U.S.C. 5 5125(f) (2006). A
similar statement is included in Section 5116(d), which states an entity
applying for HMEP grant money must "submit an application at the time, and
contain information, the Secretary requires." 49 U.S.C. 5116(d) (2006).
Through these provisions, the Act gives the Secretary sole discretion over the
collection of information from grant applicants. In other words, Congress did
not mandate that the Secretary be engaged in the collection of information from
grant applicants with a certain level of detail, or with a certain frequency.
The Interested Party/IME comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the
fee collected is used for a purpose related to transporting hazardous material.
The plain language of the Act, as well as applicable Federal Register excerpts,
state that this is only one factor the Secretary may consider in the awarding of
or denial of grants. The Secretary may also consider a variety of other
factors, including "the number of hazardous materials facilities, types and
amounts of hazardous materials transported, population at risk, frequency and
number of incidents recorded in past years, high mileage transportation
corridors, whether the State or Indian tribe assesses and collects fees on the
transportation of hazardous materials and whether such assessments or fees are
used solely to carry out purposes related to the transportation of hazardous
materials." 57 Fed. Reg. 43064 (Sept. 17, 1992). This statement was codified
in section 5116 of the Act, which states that in making decisions in regards to
the allocation of grants, the Secretary may consider:
(A) the number of hazardous material facilities in the State or on land under
the jurisdiction of the tribe;
(B) the types and amounts of hazardous material transported in the State or on
that land;
(C) whether the State or tribe imposes and collects a fee on transporting
hazardous material;
(D) whether the fee is used only to carry out a purpose related to transporting
hazardous material; and
(E) other factors the Secretary decides are appropriate to carry out this
subsection.
49 U.S.C. 5 5116(b) (4)(A)-(E) (2006).
As this provision shows, a variety of factors come into play when assessing the
effective use of HMEP grant money. As a result, it would be improper to state
that PHMSA should measure such effectiveness solely on whether the fee is used
solely to carry out a purpose related to the transportation of hazardous
material. Thus, IME's statement that PHMSA has never applied the statutory
criteria when awarding or denying HMEP grant money is inconclusive.
Proposed Questions for the ICR
The proposed questions included in the IME1s comments focus on factors that are
inapplicable to PHMSA1s evaluation of the usage of HMEP grant money. While IME
states that the proposed questions only clarify the question currently listed on
the ICR , some of IME's questions are outside the scope of this question. In
addition to generally asking if a hazmat fee is administered in the state/tribal
region, and for what purpose the revenue from the fee is used, IME's proposed
questions also ask state/tribal grant applicants to report the name of the
agency that administers each fee. Additionally, grant applicants should state

whether the size of the company is considered when setting the amount of the fee
and disclose the total revenue collected from each fee during the last fiscal
year. (See proposed questions listed in IME's comments 2 (a),(c), & (e)) .
In its comments, IME has expressed concern that fees could be being used for
purposes not related to the transportation of hazardous materials. However, it
is unclear how the addition of the proposed questions to the ICR would enable
PHMSA to glean any additional information about how effectively HMEP grant money
is being spent. Furthermore, the inclusion of these questions suggests that IME
realizes, contrary to its written comments, that other factors besides the
purpose for which grant money is used should be considered when the Secretary
grants HMEP money to states/tribal authorities.
Likewise, the proposed questions in the Interested Party comments also ask for
information that is outside the scope of the current ICR. In addition to the
questions included in IME's comments, the Interested Party comments ask the
basis upon which each state/tribal hazmat fee is assessed. Again, it is unclear
how the addition of the proposed questions will enable PHMSA to learn anything
new about the use of the grant moneys assessed by the state/tribal authority.
As already stated, the Act grants the Secretary the discretion to request any
information from grant applicants that is deemed necessary to aide in the
issuance of HMEP grant money. To exercise this discretion without a legitimate
end, such as the IME/Interested Party comments advocate, would be an abuse of
the Secretary's discretion. Despite the numerous amendments to the Act over the
years, Congress has allowed this discretionary power to remain in the hands of
the Secretary. Because the Secretary has not asked for additional information
to be included on the current ICR, PHMSA's request for a 3-year extension to the
current ICR is appropriate.
Preemptive Powers
Congress granted preemptive powers to DOT/PHMSA through an amendment to the Act
to ensure compliance with the Act's guidelines on the assessment of non-federal
fees. As IME's comments show, such preemptive powers have been used when
necessary. Additionally, the IME comments list instances where parties have
taken action against the State to ensure that non-federally assessed fees were
not discriminatory or malapportioned. Requiring an increased reporting burden
on all grant applicants is unfair considering that many fees are assessed in
compliance with the law. When fairness is an issue, individual parties are
better equipped not only to recognize the unfairness, but also to take legal
action in order to dispute the fee.

I am Kevin Crawford. Absent the HMEP program, LEPCs would have no resources for
planning and training activities. In the nature of my business I am a member of three
LEPCs.
I am sensitive to the industry desire not to pay more than its fair share of fees. Of course,
when it comes to hazmat incidents on the streets and highway, these very same industries
are fully responsible. When they think they are being unfairly charged for the costs of a
response and cleanup, they are eager to point the finger at local agencies for a failure to
have adequate plans and training.
In the rural parts of the country these groups are almost entirely made up of volunteers.
Industry can't have it both ways. Without resources these agencies can't possibly plan
and train. As HMEP funding is the bulk of the resources they have, industry's efforts to
penalize states by artificially evaluating the use of funds, is ill-conceived at best.
DOT has authority to collect information. They should impose these burdens only when
there is a clear intent to use the information for a reasonable purpose that is consistent
with the statute and regulations.
The Purpose of State-Tribal Assessed Hazmat Fees
The Interested PartyAME comments characterize Congress' purpose in enacting
the 1990 amendments to the Hazardous Materials Transportation Act ("Act") as funding a
federal mandate that enables states to "develop emergency response plans" and train
"emergency responders." However, this statement oversimplifies and narrows the
purpose of the 1990 amendments. The plain language of the Act and the pertinent federal
publication list a variety of uses for HMEP grant money that are far broader in scope.
In a federal publication, the Department of Transportation ("DOT") asserted that
the overall purpose of the grants is "to improve the capability of communities to plan for
and respond to the fill range ofpotential risks posed by accidents and incidents
involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17, 1992) (emphasis added).
This broad purpose is articulated by the Act through its statutory provisions. For
example, section 5 116(a) of the Act requires the Secretary of Transportation
("Secretary") to issue grants to statesftribal authorities for "developing, improving, and
implementing emergency response plans under EPCRA, including the determination of
flow patterns of hazardous materials within a State and between a State and another State;
and determining the need for regional hazardous materials response teams." 49 U.S.C. 9
5 116(a) (2006). Section 5 125(f) of the Act states that grant money may be used for
"enforcement and planning, developing, and maintaining a capability for emergency
response." 49 U.S.C. 5125(f) (2006). HMEP grant money should be used to train
public sector employees to respond to accidents and incidents involving hazardous
material. 49 U.S.C. fj 51 16(b)(l) (2006). Grant money can also be used to pay the
tuition costs and travel expenses of both those attending and those providing such
training. 49 U.S.C. 5 5 116(b)(3)(A)(i)-(iv) (2006).
Both the statutory language and the information found in federal publications
reveal that the overall intent of this aspect of the Act is one of leniency. The grants
provided by PHMSA are meant to allow states to engage in a wide variety of

administrative activities and research, as well as engaged work out in the field, directed
towards the safe transport of hazardous materials. A more narrow interpretation would
defeat the overall purpose of the grants by restricting the flow of money to activities that
the state finds necessary to ensure the safe transport of hazardous materials. Thus, the
"required use" of HMEP grant money, as set out by 49 U.S.C. 5 125(f), must be based on
a broad reading of the Act.

The Factors Used to Evaluate Grant Ap~licants
Section 5 125(f)(1)of the Act states that any information regarding fees assessed
by a stateltribal authority from Hazmat transporters should be reported to the Secretary
"on the Secretary's request." 49 U.S.C. 5 5125(f) (2006). A similar statement is included
in Section 5 1 16(d), which states an entity applying for HMEP grant money must "submit
an application at the time, and contain information, the Secretary requires." 49 U.S.C.
5 116(d) (2006). Through these provisions, the Act gives the Secretary sole discretion
over the collection of information from grant applicants. In other words, Congress did
not mandate that the Secretary be engaged in the collection of information from grant
applicants with a certain level of detail, or with a certain frequency.
The Interested PartyIIME comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the fee collected
is used for a purpose related to transporting hazardous material. The plain language of
the Act, as well as applicable Federal Register excerpts, state that this is only one factor
the Secretary may consider in the awarding of or denial of grants. The Secretary may
also consider a variety of other factors, including "the number of hazardous materials
facilities, types and amounts of hazardous materials transported, population at risk,
frequency and number of incidents recorded in past years, high mileage transportation
corridors, whether the State or Indian tribe assesses and collects fees on the transportation
of hazardous materials and whether such assessments or fees are used solely to carry out
purposes related to the transportation of hazardous materials." 57 Fed. Reg. 43064 (Sept.
17, 1992). This statement was codified in section 5 116 of the Act, which states that in
making decisions in regards to the allocation of grants, the Secretary may consider:
(A) the number of hazardous material facilities in the State or on land under the
jurisdiction of the tribe;
(B) the types and amounts of hazardous material transported in the State or on that
land;
(C) whether the State or tribe imposes and collects a fee on transporting
hazardous material;
@) whether the fee is used only to carry out a purpose related to transporting
hazardous material; and
(E) other factors the Secretary decides are appropriate to carry out this subsection.
49 U.S.C.

5 5 116(b)(4)(A)-(E) (2006).

As this provision shows, a variety of factors come into play when assessing the
effective use of HMEP grant money. As a result, it would be improper to state that
PHMSA should measure such effectiveness solely on whether the fee is used solely to

carry out a purpose related to the transportation of hazardous material. Thus, IME's
statement that PHMSA has never applied the statutory criteria when awarding or denying
HMEP grant money is inconclusive.

Proeosed Questions for the ICR
The proposed questions included in the IME's comments focus on factors that are
inapplicable to PHMSA's evaluation of the usage of HMEP grant money. While IME
states that the proposed questions only clarify the question currently listed on the ICR',
some of IME's questions are outside the scope of this question. In addition to generally
asking if a hazmat fee is administered in the stateltribal region, and for what purpose the
revenue from the fee is used, IME's proposed questions also ask stateltribal grant
applicants to report the name of the agency that administers each fee. Additionally, grant
applicants should state whether the size of the company is considered when setting the
amount of the fee and disclose the total revenue collected from each fee during the last
fiscal year. (See proposed questions listed in IME's comments 2(a),(c), & (e)).
In its comments, IME has expressed concern that fees could be being used for
purposes not related to the transportation of hazardous materials. However, it is unclear
how the addition of the proposed questions to the ICR would enable PHMSA to glean
any additional information about how effectively HMEP grant money is being spent.
Furthermore, the inclusion of these questions suggests that IME realizes, contrary to its
written comments, that other factors besides the purpose for which grant money is used
should be considered when the Secretary grants HMEP money to statesltribal authorities.
Likewise, the proposed questions in the Interested Party comments also ask for
information that is outside the scope of the current ICR. In addition to the questions
included in IME's comments, the Interested Party comments ask the basis upon which
each stateltribal hazmat fee is assessed. Again, it is unclear how the addition of the
proposed questions will enable PHMSA to learn anything new about the use of the grant
moneys assessed by the stateltribal authority.
As already stated, the Act grants the Secretary the discretion to request any
information from grant applicants that is deemed necessary to aide in the issuance of
HMEP grant money. To exercise this discretion without a legitimate end, such as the
IMEIInterested Party comments advocate, would be an abuse of the Secretary's
discretion. Despite the numerous amendments to the Act over the years, Congress has
allowed this discretionary power to remain in the hands of the Secretary. Because the
Secretary has not asked for additional information to be included on the current ICR,
PHMSA's request for a 3-year extension to the current ICR is appropriate.
Preemptive Powers
Congress granted preemptive powers to DOT/PHMSA through an amendment to
the Act to ensure compliance with the Act's guidelines on the assessment of non-federal
fees. As IME's comments show, such preemptive powers have been used when
necessary. Additionally, the IME comments list instances where parties have taken
action against the State to ensure that non-federally assessed fees were not discriminatory

'

The HMEP grant application currently asks applicants to "Submit a written statement explaining whether
the state assess and collects fees on transportation of hazardous materials and whether such assessment of
fees are used solely to canyout purposes related to the transportation of hazardous materials."

or malapportioned. Requiring an increased reporting burden on all grant applicants is
unfair considering that many fees are assessed in compliance with the law. When
fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.

Comments to DOT PHMSA Information Collection Activity Notice
Docket PHMSA-2007-27181
Electronically submitted
Dear PHMSA:
Thank you for this opportunity to comment on what we believe to be a very
important notice.
We are
Our membership is heavily dependant on HMEP funding distributed through the
states. The burdens proposed by the current notice will fall on not just state
agencies. Rather, it will fall on local, tribal and other organizations that
are users of the funding. These burdens are not trivial. Many of our member
agencies are volunteer groups. Devoting time and energy to reports detracts
from their other very important missions.
We believe that DOT/PHMSA has broad authority to collect information from grant
recipients. That authority should not be used absent some actual purpose and
proposed use for the information collected.
The collection of additional information in the manner advocated by petitioner
and other commenters is unjustified because their suggested use of that
information is improper. In any event, as DOT/PHMSA notes, you already collect
a large percentage of the information requested. Data collection for the sake
of data collection is unreasonable.
We do not believe that DOT/PHMSA should impose the burden of information
collection without a clear plan and purpose to use the information in a fashion
that comports with statute and regulation. At this point all we really have is
the advocacy of outsiders regarding the use of the information. Until and
unless DOT/PHMSA is clear in its plans for the use of the information it appears
that the proposed collection activity is simply an increased burden without a
purpose.
The petitioner and commenters characterizes Congress' purpose in enacting the
1990 amendments as funding a federal mandate that enables states to "develop
emergency response plans" and train "emergency responders." However, this
statement oversimplifies and narrows the purpose of the 1990 amendments.
Section 117(a) of the HMTA requires the Secretary of Transportation to make
grants to States for "developing, improving, and implementing emergency response
plans under EPCRA, including the determination of flow patterns of hazardous
materials within a State and between a State and another State; and determining
the need for regional hazardous materials response teams." 49 U.S.C. § 117(a).
Section 5125(f) of the HMTA also states that grant moneys may be used for
"enforcement and planning, developing, and maintaining a capability for
emergency response." 49 U.S.C. § 5125(f). In a federal publication, the Agency
further explained that the overall purpose of the grants is "to improve the
capability of communities to plan for and respond to the full range of potential
risks posed by accidents and incidents involving hazardous materials." 57 Fed.
Reg. 43062 (Sept. 17, 1992). It is clear from both the statutory language and
the information found in federal publications that the overall intent of this
aspect of the HMTA is one of leniency. It is meant to allow states to engage in
a wide variety of administrative activities and research, as well as engaged
work out in the field, directed towards the safe transport of hazardous

materials. A more narrow interpretation would defeat the overall purpose of the
grants by restricting the flow of money to activities that the state finds
necessary to ensure the safe transport of hazardous materials.
Additionally, the petitioner's comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the
fee collected is used for a purpose related to transporting hazardous material.
The HMTA, as well as the applicable Federal Register excerpts, state that this
is only one factor to be considered in the awarding of or denying of grants. A
number of other factors are at the discretion of the Secretary of
Transportation, including "the number of hazardous materials facilities, types
and amounts of hazardous materials transported, population at risk, frequency
and number of incidents recorded in past years, high mileage transportation
corridors, whether the State or Indian tribe assesses and collects fees on the
transportation of hazardous materials and whether such assessments or fees are
used solely to carry out purposes related to the transportation of hazardous
materials." 57 FR 43064 (Sept. 17, 1992). Because a wide variety of factors
could come into play when assessing the propriety of grant awards, it would be
incorrect to state that PHMSA should have assessed grant awards solely on
"whether the fee is used only to carry out a purpose related to transporting
hazardous material" and failed to fulfill that duty. 49 U.S.C. 5116(b)(4)(D).
49 USC 5125(f)(l) does state that a fee can only be imposed on a hazardous waste
transporter if that fee is used for a purpose related to the transporting of
hazardous material.
However, this information only need be reported to the
Secretary of Transportation "on the Secretary's request" and is not "mandated"
by the statute. Petitioner and commenters characterizes this reporting
"requirement" as a "congressional mandate," which is not correct.
The
additional information should only be collected if it serves some specific
purpose - Congress did not mandate information collection for the sake of
information collection.
There are several other more specific arguments put forth by the petitioner and
commenters that need to be addressed in greater detail:
"[Iln instances where there is no clear demonstration that State-levied
1.
hazardous materials fees are being used as required by [49 U.S.C. 5125(f)], such
state[s] should be prohibited from receiving an award."
The above argument was specifically rejected by the Research and Special
Programs Administration's ("RSPA") September, 1992 discussion of public comments
to the final rule implementing the Public Sector Training and Planning Grants
Program ("PTPG") . RSPA responded to the above argument by stating:
RSPA is sensitive to the issue raised by this commenter and will carefully
consider that information in its grants-review process. However, it is not
necessary to revise the rule in the manner suggested by the commenter.
RSPA chose not to revise the rule as suggested because whether a state collects
a fee and how that fee are only some factors to be considered when allocating
funds. Other factors the RSPA considers include: the number of hazardous
materials facilities; types and amounts of hazardous materials transported;
population at risk; frequency and number of incidents recorded in past years;
and high mileage transportation corridors.
These factors are also included in
the statutory section on monitoring and review of Planning and Training Grants.

Although state fees have been invalidated through either the preemption
determination process or by a court, "no state in any year has been denied a
PTPG" a fact which demonstrates that the RSPA considers all of the above
factors when allocating monies, not just state fee collection and usage.
The
additional information proposed for collection simply will not inform this
analysis in any way relative to the burdens imposed on the grant recipients.
2.
"[The newly requested fee information] would provide the data necessary
for both the agency and the regulated community to determine if states are in
compliance with applicable provisions of the HMTA."
The Pipeline and Hazardous Materials Safety Administration ("PHMSA") already
receives almost all of the newly requested information. When discussing the
expected burden of reporting the information the agency stated: "HMEP
[Hazardous Materials Emergency Preparedness] grant recipients are required to
submit performance reports, most of which should include some or all of the
information we are requesting."
The fact that the PHMSA already has most of
the information suggest that the proposed information collection effort is to
appease industry since "some states were not willing to provide industry with
information sufficient to determine whether states with hazmat fees were
complying with the limitations of the HMTA."
In such cases, the aggrieved
industry party should pursue preemption if they think it is appropriate rather
than ask PHMSA to do its bidding.

3.
"Our petition will not have the effect of denying states or Indian tribes
funds they are entitled to receive."
This comment is somewhat disingenuous. By advocating an inappropriate standard
for preemption, the effort of collecting information for an invalid purpose will
be to deny states and tribes money to which they are entitled.
Whether or not a state or tribe is denied funding depends on the specifics of
the fee in question. While there appears to be some disagreement regarding
which fees might be preempted - in fact the petitioner and commenters are quite
inconsistent on this point - there are some generalities that are useful in this
determination.
The specific section discussing fees is 5 5125 part (f) which states:
Fees.--(l) A State, political subdivision of a State, or Indian tribe may impose
a fee related to transporting hazardous material only if the fee is fair and
used for a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for emergency
response.
The key determinations are whether the fee is "fair" and whether used for "a
purpose related to transporting hazardous material." Any fee that is not
"fair," or that is "used for" purposes other than those specified in the 5
5125(f), is preempted under 49 U.S.C. 5125(a)(2) which states:
(a) General.--Except as provided in subsections (b), (c), and (e) of this
section and unless authorized by another law of the United States, a requirement
of a State, political subdivision of a State, or Indian tribe is preempted if(2) the requirement of the State, political subdivision, or tribe, as applied or
enforced, is an obstacle to accomplishing and carrying out this chapter, a
regulation prescribed under this chapter, or a hazardous materials

transportation security regulation or directive issued by the Secretary of
Homeland Security.
Basically there are three categories of preemption under 5 5125(a) and (b).
First, is the "dual compliance test" which preempts a law when it is not
possible to comply with both the non-Federal requirement and the Federal hazmat
law or a regulation prescribed under federal hazmat law.
Second, is the
"obstacle test" which preempts a non-Federal requirement if its application or
enforcement is an obstacle to accomplishing and carrying out the Federal hazmat
law or a regulation prescribed under Federal hazmat law.
Third is the "covered
subjects test" which preempts a non-Federal requirement if it concerns any of
the five covered subjects and is not "substantively the same as" the Federal
hazmat law or regulations' requirements.
Using existing information sources, State and tribal fees have been found to be
preempted by both courts and the RSPA through the preemption determination
process under 49 U.S.C 5125(d)(l). RSPA has found that fees which fail the
fairness or "used for" test in 49 U.S.C. 5125(f)(l) , create an obstacle to
carrying out the Federal hazardous materials transportation law and thus fail
the "obstacle test" under 49 U.S.C. S 5125(a)(2). The Supreme Court in
Evansville-Vanderburgh came up with a test to determine whether a fee is fair.
Under the Evansville test, a fee is fair if it is:
(a) based on fair approximation of use of facilities;
(b) not excessive in relation to benefits conferred;
(c) does not discriminate against interstate commerce
The most common grounds for preemption is when the fee is not based on some fair
approximation of the use of facilities as is required under 49 U.S.C. 5
5125 (f)(1).
A State may impose flat fees when "administrative difficulties make collection
of more finely calibrated user charges impracticable."
The state bears the
burden of demonstrating the practical impossibility of employing any form of
apportionment that would render its tax better "calibrated" than a flat tax.
The Court has indicated that flat taxes are permissible when they are shown to
be "the only practicable means of collecting revenues from users and the use of
a more finely gradated user-fee schedule would pose genuine administrative
burdens. "
Conclusion
The party challenging the validity of a state statute on Commerce Clause grounds
bears the burden of proof.
The criteria under which fees will be evaluated are
not specific, which justifies the broad discretion given to the Secretary to
determine whether the purpose of the fee relates to hazardous materials
transportation.
States, tribes and local governments plan, train and exercise to deal with the
risks of hazardous materials in transportation. Contrary to the narrative in
the current notice, DOT/PHMSA does already require that states and tribes
broadly report on their use of funds for planning, training, and exercises.
Current reporting is more than adequate for a determination under the second
preemption test as evidenced by preemption actions to this point:
As petitioner's comments show, such preemptive powers have been used when
necessary. Additionally, the petitioners listed a few instances where parties

had taken action against the State to ensure that non-federally assessed fees
were not discriminatory or malapportioned. Requiring an increased timereporting burden on all grant applicants is unfair considering that most fees
are assessed in compliance with the law. When fairness is an issue, individual
parties are better equipped not only to recognize the unfairness, but also to
take legal action in order to dispute the fee.
The petitioner and cornmenters certainly wish to ease their burden in challenging
fees. They mischaracterize the obligations of DOT/PHMSA to collect data to make
a preemption evaluation as mandatory.
In these entities are unhappy about a
specific state fee they should challenge it rather than attempt to shift the
burdens of these arguments to states and tribes.
Congress has given the agency broad discretion to evaluate both grants and the
question of preemption. Existing data collection would appear to be fully
adequate to serve the agency's needs in this regard. Until such time that
DOT/PHMSA can articulate a specific use for the information that is consistent
with the statute and regulations, the increased burdens should not be imposed.

I chair a local emergency planning committee and am a member of several others. I work
with these and dozens of other LEPCs. Absent the HMEP program, these LEPCs would
have no resources for planning and training activities.
I am sensitive to the industry desire not to pay more than its fair share of fees. Of course,
when it comes to hazmat incidents on the streets and highway, these very same industries
are fully responsible. When they think they are being unfairly charged for the costs of a
response and cleanup, they are eager to point the finger at local agencies for a failure to
have adequate plans and training.
In the rural parts of the country these groups are almost entirely made up of volunteers.
Industry can't have it both ways. Without resources these agencies can't possibly plan
and train. As HMEP funding is the bulk of the resources they have, industry's efforts to
penalize states by artificially evaluating the use of funds, is ill-conceived at best.
DOT has authority to collect information. They should impose these burdens only when
there is a clear intent to use the information for a reasonable purpose that is consistent
with the statute and regulations.
The Purpose of State-Tribal Assessed Hazmat Fees
The Interested PartynME comments characterize Congress' purpose in enacting
the 1990 amendments to the Hazardous Materials Transportation Act ("Act") as funding a
federal mandate that enables states to "develop emergency response plans" and train
"emergency responders." However, this statement oversimplifies and narrows the
purpose of the 1990 amendments. The plain language of the Act and the pertinent federal
publication list a variety of uses for HMEP grant money that are far broader in scope.
In a federal publication, the Department of Transportation ("DOT") asserted that
the overall purpose of the grants is "to improve the capability of communities to plan for
and respond to the full range ofpotential risks posed by accidents and incidents
involving hazardous materials." 57 Fed. Reg. 43062 (Sept. 17, 1992) (emphasis added).
This broad purpose is articulated by the Act through its statutory provisions. For
example, section 5 116(a) of the Act requires the Secretary of Transportation
("Secretary") to issue grants to statedtribal authorities for "developing, improving, and
implementing emergency response plans under EPCRA, including the determination of
flow patterns of hazardous materials within a State and between a State and another State;
and determining the need for regional hazardous materials response teams." 49 U.S.C. 8
5 116(a) (2006). Section 5 125(f) of the Act states that grant money may be used for
"enforcement and planning, developing, and maintaining a capability for emergency
response." 49 U.S.C. 4 5 125(f) (2006). HMEP grant money should be used to train
public sector employees to respond to accidents and incidents involving hazardous
material. 49 U.S.C. 8 5116(b)(l) (2006). Grant money can also be used to pay the
tuition costs and travel expenses of both those attending and those providing such
training. 49 U.S.C. 5 5 116(b)(3)(A)(i)-(iv)(2006).
Both the statutory language and the information found in federal publications
reveal that the overall intent of this aspect of the Act is one of leniency. The grants
provided by PHMSA are meant to allow states to engage in a wide variety of
administrative activities and research, as well as engaged work out in the field, directed

towards the safe transport of hazardous materials. A more narrow interpretation would
defeat the overall purpose of the grants by restricting the flow of money to activities that
the state finds necessary to ensure the safe transport of hazardous materials. Thus, the
"required use" of HMEP grant money, as set out by 49 U.S.C. 5125(f), must be based on
a broad reading of the Act.
The Factors Used to Evaluate Grant Applicants
Section 5 125(f)(1)of the Act states that any information regarding fees assessed
by a stateltribal authority from Hazmat transporters should be reported to the Secretary
"on the Secretary's request." 49 U.S.C. 5125(f) (2006). A similar statement is included
in Section 5 1 16(d), which states an entity applying for HMEP grant money must "submit
an application at the time, and contain information, the Secretary requires." 49 U.S.C.
5 116(d) (2006). Through these provisions, the Act gives the Secretary sole discretion
over the collection of information from grant applicants. In other words, Congress did
not mandate that the Secretary be engaged in the collection of information from grant
applicants with a certain level of detail, or with a certain frequency.
The Interested Party/IME comments suggest that the propriety of a state's
utilization of non-federally assessed fees is solely dependent on whether the fee collected
is used for a purpose related to transporting hazardous material. The plain language of
the Act, as well as applicable Federal Register excerpts, state that this is only one factor
the Secretary may consider in the awarding of or denial of grants. The Secretary may
also consider a variety of other factors, including "the number of hazardous materials
facilities, types and amounts of hazardous materials transported, population at risk,
frequency and number of incidents recorded in past years, high mileage transportation
comdors, whether the State or Indian tribe assesses and collects fees on the transportation
of hazardous materials and whether such assessments or fees are used solely to carry out
purposes related to the transportation of hazardous materials." 57 Fed. Reg. 43064 (Sept.
17, 1992). This statement was codified in section 5 116 of the Act, which states that in
making decisions in regards to the allocation of grants, the Secretary may consider:
(A) the number of hazardous material facilities in the State or on land under the
jurisdiction of the tribe;
(B) the types and amounts of hazardous material transported in the State or on that
land;
(C) whether the State or tribe imposes and collects a fee on transporting
hazardous material;
(D) whether the fee is used only to carry out a purpose related to transporting
hazardous material; and
(E) other factors the Secretary decides are appropriate to cany out this subsection.
49 U.S.C.

3 51 16(b)(4)(A)-(E) (2006).

As this provision shows, a variety of factors come into play when assessing the
effective use of HMEP grant money. As a result, it would be improper to state that
PHMSA should measure such effectiveness solely on whether the fee is used solely to
carry out a purpose related to the transportation of hazardous material. Thus, IME's

statement that PHMSA has never applied the statutory criteria when awarding or denying
HMEP grant money is inconclusive.
Proposed Ouestions for the ICR
The proposed questions included in the IME's comments focus on factors that are
inapplicable to PHMSA's evaluation of the usage of HMEP grant money. While IME
states that the proposed questions only clarify the question currently listed on the ICR',
some of IME's questions are outside the scope of this question. In addition to generally
asking if a hazmat fee is administered in the stateltribal region, and for what purpose the
revenue from the fee is used, IME's proposed questions also ask stateltribal grant
applicants to report the name of the agency that administers each fee. Additionally, grant
applicants should state whether the size of the company is considered when setting the
amount of the fee and disclose the total revenue collected from each fee during the last
fiscal year. (See proposed questions listed in IME's comments 2(a),(c), & (e)).
In its comments, IME has expressed concern that fees could be being used for
purposes not related to the transportation of hazardous materials. However, it is unclear
how the addition of the proposed questions to the ICR would enable PHMSA to glean
any additional information about how effectively HMEP grant money is being spent.
Furthermore, the inclusion of these questions suggests that IME realizes, contrary to its
written comments, that other factors besides the purpose for which grant money is used
should be considered when the Secretary grants HMEP money to statesltribal authorities.
Likewise, the proposed questions in the Interested Party comments also ask for
information that is outside the scope of the current ICR. In addition to the questions
included in IME's comments, the Interested Party comments ask the basis upon which
each stateltribal hazmat fee is assessed. Again, it is unclear how the addition of the
proposed questions will enable PHMSA to learn anything new about the use of the grant
moneys assessed by the stateltribal authority.
As already stated, the Act grants the Secretary the discretion to request any
information from grant applicants that is deemed necessary to aide in the issuance of
HMEP grant money. To exercise this discretion without a legitimate end, such as the
IMEOnterested Party comments advocate, would be an abuse of the Secretary's
discretion. Despite the numerous amendments to the Act over the years, Congress has
allowed this discretionary power to remain in the hands of the Secretary. Because the
Secretary has not asked for additional information to be included on the current ICR,
PHMSA's request for a 3-year extension to the current ICR is appropriate.
Preemptive Powers
Congress granted preemptive powers to DOTIPHMSA through an amendment to
the Act to ensure compliance with the Act's guidelines on the assessment of non-federal
fees. As IME's comments show, such preemptive powers have been used when
necessary. Additionally, the IME comments list instances where parties have taken
action against the State to ensure that non-federally assessed fees were not discriminatory
or malapportioned. Requiring an increased reporting burden on all grant applicants is
unfair considering that many fees are assessed in compliance with the law. When
1

The HMEP grant application currently asks applicants to "Submit a written statement explaining whether
the state assess and collects fees on transportation of hazardous materials and whether such assessment of
fees are used solely to carryout purposes related to the transportation of hazardous materials."

fairness is an issue, individual parties are better equipped not only to recognize the
unfairness, but also to take legal action in order to dispute the fee.