Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail
| Citation | 86 FR 61731 |
| Record Number | 2021-23132 |
| Published date | 08 November 2021 |
| Court | Pipeline And Hazardous Materials Safety Administration |
Federal Register, Volume 86 Issue 213 (Monday, November 8, 2021)
[Federal Register Volume 86, Number 213 (Monday, November 8, 2021)]
[Proposed Rules]
[Pages 61731-61745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23132]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 172
[Docket No. PHMSA-2021-0058 (HM-264A)]
RIN 2137-AF55
Hazardous Materials: Suspension of HMR Amendments Authorizing
Transportation of Liquefied Natural Gas by Rail
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: PHMSA, in coordination with the Federal Railroad
Administration (FRA), proposes to amend the Hazardous Materials
Regulations to suspend authorization of liquefied natural gas (LNG)
transportation in rail tank cars pursuant to a final rule published in
July 2020, pending the earlier of either completion of a separate
rulemaking under RIN 2137-AF54 evaluating potential modifications to
requirements governing rail tank car transportation of LNG, or June 30,
2024.
DATES: Comments must be received by December 23, 2021. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.
ADDRESSES: You may submit comments by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, Docket Operations, M-30, Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Instructions: Include the agency name and docket number PHMSA-2021-
0058 (HM-264A) or RIN 2137-AF55 for this rulemaking at the beginning of
your comment. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal information
provided. If sent by mail, comments must be submitted in duplicate.
Persons wishing to receive confirmation of receipt of their comments
must include a self-addressed stamped postcard.
Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or the DOT Docket
Operations Office (see ADDRESSES).
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this NPRM contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent
to Lily Ballengee, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001. Any commentary that PHMSA
receives which is not specifically designated as CBI will be placed in
the public docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Lily Ballengee, Transportation
Specialist, Standards and Rulemaking Division, Office of Hazardous
Materials Safety, (202) 366-8553, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001.
[[Page 61732]]
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Background
A. LNG by Rail Final Rule
B. Pending Petitions for Review of the LNG by Rail Final Rule
C. PHMSA/FRA LNG Task Force
D. Transportation Research Board Study
E. Executive Order 13990
III. Basis for Suspension
A. Development of a More Complete Understanding of the Risks and
Benefits Associated With Rail Tank Car Transportation of LNG
B. No Material Adverse Impact on Reliance Interests
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
C. Executive Order 113132
D. Executive Order 113175
E. Regulatory Flexibility Act and Executive Order 113272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Environmental Assessment
I. Executive Order 112898
J. Privacy Act
K. Executive Order 13609 and International Trade Analysis
L. Executive Order 13211
List of Subjects
I. Overview
PHMSA, in coordination with FRA, proposes to suspend recent
amendments to the Hazardous Materials Regulations (HMR; 49 CFR parts
171-180) authorizing transportation of ``Methane, refrigerated
liquid,'' commonly known as LNG in DOT-113C120W9 specification rail
tank cars while it conducts a thorough evaluation of the HMR's
regulatory framework for rail transportation of LNG in a companion
rulemaking under RIN 2137-AF54, and determines if any modifications are
necessary. Transportation of LNG by rail tank car has not occurred and
there is considerable uncertainty regarding whether any would occur in
the time it takes for PHMSA to consider potential modifications to the
existing, pertinent HMR requirements. However, PHMSA's proposed
temporary suspension of the HMR provisions authorizing transportation
of LNG in rail tank cars guarantees no such transportation will occur
before its companion rulemaking has concluded or June 30, 2024,
whichever is earlier, thereby: (1) Avoiding any risks to public health
and safety or environmental consequences (to include direct and
indirect greenhouse gas (GHG) emissions \1\) that are being evaluated
in the companion rulemaking and in ongoing research efforts undertaken
in collaboration with FRA and external technical experts; (2) assuring
timely implementation of any mitigation measures and operational
controls for rail tank car transportation of LNG identified in the
companion rulemaking or those ongoing research efforts; (3) reducing
the potential for economic burdens by ensuring that entities avoid
ordering rail tank cars compliant with the current requirements when
the companion rulemaking may adopt alternative requirements; and (4)
enabling meaningful opportunity for consideration of the perspectives
of diverse stakeholders.
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\1\ PHMSA distinguishes between ``direct'' and ``indirect'' GHG
emissions herein consistent with the meaning of those terms in
pertinent Obama-Administration Council on Environmental Quality
(CEQ) guidance. See CEQ, ``Final Guidance for Federal Departments
and Agencies on Consideration of Greenhouse Gas Emissions and the
Effects of Climate Change in National Environmental Policy Act
Reviews'' at 16 & n. 42 (Aug. 1, 2016); CEQ, ``National
Environmental Policy Act Guidance on Consideration of Greenhouse Gas
Emissions'' 86 FR 10252 (Feb. 19, 2021) (encouraging agencies to use
CEQ's 2016 guidance until CEQ issues an updated version of that
guidance).
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PHMSA proposes to add a new special provision 439 that prohibits
LNG transportation in rail tank cars until issuance of a final rule
concluding the rulemaking proceeding under RIN 2137-AF54, or June 30,
2024, whichever is earlier. Therefore, if the temporary suspension is
adopted in a final rule, the HMR will not authorize the transportation
of LNG in rail tank cars until completion of the companion rulemaking
or June 30, 2024, whichever is earlier. Rail transport of LNG may still
be permitted on an ad hoc basis as authorized by the conditions of a
PHMSA special permit (Sec. 107.105), or in a portable tank secured to
a rail car pursuant to the conditions of an FRA approval (Sec.
174.63).
II. Background
A. LNG by Rail Final Rule
On May 7, 2018, PHMSA accepted a petition for rulemaking \2\ from
the Association of American Railroads (AAR) to allow the transportation
of LNG by rail in DOT-113 tank cars and began drafting a notice of
proposed rulemaking (NPRM) in consultation with FRA. On April 10, 2019,
Executive Order 13868 (``Promoting Energy Infrastructure and Economic
Growth'') \3\ was published, which directed the Secretary of
Transportation to propose regulations that ``treat LNG the same as
other cryogenic liquids and permit LNG to be transported in approved
rail tank cars'' and finalize that rulemaking within 13 months.\4\ In
October 2019, PHMSA issued the LNG by Rail NPRM, which proposed to
amend the HMR to allow LNG to be transported in existing DOT-113 tank
cars and sought comments (due within 60 days) on the potential need for
additional operational controls.\5\
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\2\ Docket No. PHMSA-2017-0020-0002.
\3\ 84 FR 15495 (Apr. 15, 2019).
\4\ The Secretary has delegated such rulemaking duties to the
PHMSA Administrator. See 49 CFR 1.97.
\5\ 84 FR 56964 (Oct. 24, 2019).
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On December 5, 2019, PHMSA issued a DOT special permit (SP) 20534
to Energy Transport Solutions, LLC (ETS) to allow the transportation of
LNG in existing DOT-113 tank cars from Wyalusing, PA, to Gibbstown, NJ,
with no intermediate stops.\6\ DOT-SP 20534 includes several safety
control measures, including a requirement to conduct remote sensing for
detecting and reporting internal pressure, location, and leakage, and a
requirement to provide training to emergency response agencies that
could be affected prior to the initial shipment of a tank car under the
SP. ETS applied for the SP before the LNG by Rail NPRM was initiated.
After issuing the SP, PHMSA re-opened the comment period on the
proposed rule until January 13, 2020.\7\
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\6\ DOT-SP 20534 expires by its terms on November 30, 2021.
However, ETS may request a renewal in accordance with Sec. 107.109.
See https://cms7.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP20534.pdf/2017088295/SP20534.
\7\ 84 FR 70491 (Dec. 23, 2019).
\8\ 85 FR 44994 (Jul. 24, 2020) (LNG by Rail final rule).
\9\ See, e.g., id. at 45024; FEA, Docket No. PHMSA-2018-0025-
0478; RIA, Docket No. PHMSA-2018-0025-0479.
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On July 24, 2020, PHMSA published a final rule in the Federal
Register revising the HMR to allow for the bulk transport of LNG in
rail tank cars.\8\ In the LNG by Rail final rule, the Final
Environmental Assessment (FEA), and the Final Regulatory Impact
Analysis (RIA), PHMSA evaluated the potential benefits of rail tank car
transportation of LNG and weighed them against the potential public
safety and environmental risks.\9\ PHMSA coordinated with FRA to
determine that those potential risks from rail tank car transportation
of LNG would be at safe levels if such transportation were: (1) In DOT-
113C120W specification rail tank cars--indicated by the new
specification suffix ``9'' (DOT-113C120W9)--with
[[Page 61733]]
enhanced outer tank requirements; (2) subject to all applicable then-
extant requirements of the HMR; and (3) subject to certain additional
operational controls. The LNG by Rail final rule increased the
thickness of DOT-113 outer tank shells from 7/16 to 9/16 inch (a 28.5
percent increase) and mandated use of stronger TC-128 Grade B
normalized steel. With respect to this increase in tank shell thickness
and strength, PHMSA noted that ``[w]hen divided by the large number of
carloads that would be carried during a DOT-113's 50-year service life,
the 9/16th inch TC-128B normalized steel outer tank is highly cost-
effective in that it will mitigate the consequences of derailment
involving LNG by reducing the number of tanks punctured in the unlikely
event of an accident.'' \10\ The LNG by Rail final rule also required
operational controls for transportation of LNG by rail tank car,
including routing analysis, improved train braking, and remote
monitoring. PHMSA noted that the operational controls added in the
final rule were expected to reduce the likelihood of an incident and
reduce potential damages if an incident were to occur.\11\ The LNG by
Rail final rule went into effect on August 24, 2020.
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\10\ Id. at 45005.
\11\ Id. at 45008.
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On August 20, 2020, the Puyallup Tribe of Indians filed an
administrative appeal of the LNG by Rail final rule, alleging, inter
alia, that the rulemaking disproportionately exposed its members to
environmental hazards (including those associated with climate change)
and that PHMSA's engagement with the Tribe on the rulemaking was
inadequate. PHMSA denied the Tribe's administrative appeal on November
13, 2020.\12\
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\12\ Docket No. PHMSA-2018-0025-0637.
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B. Pending Petitions for Review of the LNG by Rail Final Rule
The LNG by Rail final rule is the subject of several petitions for
judicial review. A group of 6 environmental groups, a coalition of
attorneys general for 14 States and the District of Columbia, and the
Puyallup Tribe of Indians filed separate petitions for review
challenging PHMSA's LNG by Rail final rule. All of the petitioners ask
the court to vacate the rule, alleging violations of the Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127), the
Administrative Procedure Act (APA; 5 U.S.C. 553 et seq.), and the
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). The
Puyallup Tribe also alleges violations of the Tribal consultation
protocols under the National Historic Preservation Act (54 U.S.C.
300101 et seq.) and Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''),\13\ as well as
disparate impacts on the Tribe in violation of Executive Order 12898
(``Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations'') \14\ and Title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
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\13\ 65 FR 67249 (Nov. 9, 2000).
\14\ 59 FR 7629 (Feb. 16, 1994).
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The petitions have been consolidated within a single proceeding in
the U.S. Court of Appeals for the D.C. Circuit. On March 16, 2021, the
court granted PHMSA's unopposed motion to place the petitions in
abeyance while PHMSA reviewed the LNG by Rail final rule pursuant to
Executive Order 13990 (``Protecting Public Health and the Environment
and Restoring Science To Tackle the Climate Crisis'').\15\
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\15\ 86 FR 7037 (Jan. 25, 2021).
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C. PHMSA/FRA LNG Task Force
PHMSA established a joint LNG Task Force with FRA in January 2020
as part of its ongoing research efforts on the transportation of LNG.
The LNG Task Force helped to identify areas of research that could
inform potential future regulatory activity, as appropriate. To assist
in identifying appropriate tasks within that effort, the LNG Task Force
employed a risk-based framework directed toward:
``knowing the risk'' by improving DOT's knowledge of the
types and extent of risk posed by LNG by rail transportation, with a
focus on research and testing;
``predicting the risk'' by leveraging modeling and
simulation software and tools to analyze LNG by rail operations and
potential risk outcomes;
``reducing the risk'' by relating the possible strategies
and technologies that decrease the risk of transporting LNG by rail
tank cars, especially through track inspection and operational factors;
and
``preparing for the risk'' by focusing on the emergency
response community to ensure that--should an incident occur and the
risks of LNG materialize--emergency responders have the awareness,
training, and resources to keep themselves and the public safe.
The LNG Task Force ultimately identified and undertook 15 tasks to
synthesize ongoing research and outreach activities. Those tasks are
listed in Table 1 below.
Table 1--LNG Task Force Methodology for Addressing LNG by Rail Risk
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Know the risk Predict the risk Reduce the risk Prepare for the risk
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Empirical Review of Evaluate Re-Evaluate Validate
International LNG Rail Likely Number of Costs and Benefits of Emergency Responder
Transportation. Punctures and ECP Brakes. Opinions and Needs.
LNG Loading/Unloading Safety Derailment Simulation Evaluation of Develop LNG
Evaluation. Models. Train Operational Educational and
Quantitative Risk Assessment Develop Worst- Controls. Outreach Plan.
of LNG Transportation. Case Scenario Model. Automated
Full-Scale Impact Testing on Safety/ Track Inspection.
DOT-113. Security Route Risk
LNG UN T75 Portable Tank Assessment.
Fire-Testing. Train Energy
and Dynamics Simulator
(TEDS).
Modal
Conversion Between LNG
by Truck and Rail.
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The LNG Task Force initially projected completion of the above
tasks by late 2021. However, much of the LNG Task Force's work was
interrupted by the coronavirus disease 2019 (COVID-19) public health
emergency. Consequently, several tasks--including full-scale impact
testing, puncture and derailment simulation modeling, and LNG portable
tank pool fire testing--are not expected to be completed until sometime
in 2022.
D. Transportation Research Board Study
Pursuant to the ``Further Consolidated Appropriations Act, 2020''
(Pub. L. 116-94), PHMSA and FRA partnered with the National Academy of
Sciences, Engineering, and Medicine (NASEM) to conduct a study on the
transportation of LNG in rail tank cars through a committee of the
Transportation
[[Page 61734]]
Research Board (TRB).\16\ The TRB committee commenced work in mid-July
2020.
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\16\ In that legislation, Congress earmarked funds for the NASEM
study for the express purpose of ``inform[ing] rulemaking.'' NASEM
maintains a website dedicated to the TRB committee's work that
contains the TRB committee's charter, work product, meeting agendas,
and other supporting material. See NASEM, ``Safe Transportation of
Liquefied Natural Gas by Railroad Tank Car,'' https://www.nationalacademies.org/our-work/safe-transportation-of-liquefied-natural-gas-by-railroad-tank-car (last visited Jun. 16, 2021).
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The TRB study consists of two phases, with each phase culminating
in a report with findings and recommendations:
Phase I reviews the plans and progress of the LNG Task
Force to develop a report containing findings regarding the relevance,
completeness, and quality of its efforts, and to offer recommendations
for addressing any shortcomings.
Phase II involves a more comprehensive assessment of
topics relevant to the safe movement of LNG by rail tank car pursuant
to both SP and the HMR. The Phase II Report will contain
recommendations to Congress, PHMSA, FRA, industry, emergency
responders, and other relevant stakeholders on necessary near- and
long-term actions to improve understanding of the risks associated with
transporting LNG by rail tank car, mitigate those risks, and prevent
and prepare for potential incidents.
The TRB committee issued its Phase I Report on June 15, 2021.\17\
Although the Phase I Report generally praised the LNG Task Force's
``comprehensive as planned'' program for making effective use of a
``number of long standing and high quality research and testing
programs,'' the TRB committee noted that the COVID-19 public health
emergency resulted in delays in initiation and completion of several
tasks. The TRB committee also noted that the interdependency of many of
those outstanding tasks complicated its and the LNG Task Force's work
in developing a complete understanding of the risks associated with
transportation of LNG in rail tank cars. It expressed particular
concern regarding the incomplete status of tasks pertaining to full-
scale impact testing, portable tank pool fire testing, worst-case
scenario analysis, and quantitative risk assessment.\18\ The TRB
committee also emphasized pending tasks necessary to understand the
potential risks to public and worker safety arising from releases
during loading, unloading, and transloading of LNG tank cars, as well
as in overcoming limited emergency planning and response training and
resources.
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\17\ NASEM, ``Preparing for LNG by Rail Tank Car: A Review of a
U.S. DOT Safety Research, Testing, and Analysis Initiative'' (Jun.
2021) (Phase I Report), https://www.nap.edu/read/26221/chapter/1.
\18\ Id. at 5-6.
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The Phase I Report provided recommendations \19\ for improving the
assumptions, rationale, and methodology employed by the LNG Task Force
in executing the outstanding tasks. The recommendations include that
PHMSA and FRA should make several changes to the planned portable fire
tank testing--including using LNG as the pool fire fuel and not
liquefied petroleum gas--and assess the potential for cryogenic damage
cascading to adjacent tanks. The report also recommends PHMSA and FRA
enhance the modeling for worst-case scenarios--such as using a train
speed of 50 miles-per-hour (mph) instead of 40 mph--and evaluate
explosion hazards from a spill of LNG resulting in vapor dispersion in
an environment with confined or congested spaces. Additionally, the
report recommends PHMSA and FRA add loading and unloading operations
and train assembly classification to the risk assessment for transport
of LNG by rail as compared to highway.
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\19\ Id.
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The TRB committee plans to complete its work under Phase II in mid-
2022.\20\
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\20\ Id. at 13.
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E. Executive Order 13990
Section 2(a) of Executive Order 13990 requires the review of agency
regulations and other actions promulgated or adopted between January
20, 2017, and January 20, 2021, that are candidates for suspension,
modification, or rescission because of inconsistency with
Administration policies to improve public health, protect the
environment, prioritize environmental justice, and reduce GHG
emissions. The White House identified the LNG by Rail final rule in a
non-exclusive list \21\ of agency actions that would be reviewed in
accordance with Executive Order 13990. Additionally, section 7 of
Executive Order 13990 revokes Executive Order 13868, along with several
other executive orders and executive actions, and directs agencies to
promptly take steps, consistent with applicable law, to rescind any
rules or regulations that had been issued ``implementing or enforcing''
those executive orders and executive actions.
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\21\ U.S. White House, ``Fact Sheet: List of Agency Actions for
Review,'' https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/
(last visited Jun. 16, 2021).
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On May 5, 2021, DOT issued a notice soliciting comment on potential
candidates for review under Executive Order 13990 from among existing
rules and other DOT actions.\22\ DOT received one comment pertaining to
the LNG by Rail final rule. In that comment, the Transportation Trades
Department of the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) called for re-examination of the LNG
by Rail final rule because it believes that rulemaking ``neglected to
include meaningful safety measures to adequately address the inherent
risks to this type of operation.'' \23\
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\22\ 85 FR 23876.
\23\ Docket No. DOT-OST-2021-0036-0025.
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III. Basis for Suspension
A. Development of a More Complete Understanding of the Risks and
Benefits Associated With Rail Tank Car Transportation of LNG
The LNG by Rail rulemaking considered incorporating within the HMR
regulatory requirements to protect the public, property, and the
environment from unreasonable risks from transportation of LNG in rail
tank cars. As such, PHMSA--in consultation with FRA--determined that
existing HMR requirements including the modified DOT-113 tank car and
new operational requirements prescribed in the LNG by Rail final rule,
along with expected compliance with widely-accepted, voluntary industry
standards such as AAR Circular OT-55 for shipments of LNG in rail tank
cars, would reduce risk to safety, property, and the environment to
acceptable levels in light of the potential benefits of that
rulemaking.\24\ That decision reflected consideration of LNG's
hazardous properties and the safety record of the DOT-113 tank car.\25\
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\24\ See, e.g., 85 FR 45003 (discussing reduction in risks from
tank car enhancements, mandatory operational controls, and voluntary
industry practices) and 45024 (discussing potential economic and
other benefits from the LNG by Rail final rule).
\25\ 85 FR 44998.
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However, PHMSA acknowledged in the LNG by Rail final rule that
additional further data and knowledge (for example regarding potential
benefits as well as safety and environmental risks) could make
appropriate further mitigations for shipping LNG by rail tank car.\26\
The LNG by Rail final rule, RIA, and FEA were candid about uncertainty
in the future market demand for transportation of LNG by rail tank car,
potential direct and
[[Page 61735]]
indirect GHG emissions associated with authorizing LNG by rail tank
car, and the adequacy of emergency planning and response resources.\27\
PHMSA sought to mitigate potential risks that were affected by those
uncertainties by adopting certain requirements in the LNG by Rail final
rule suggested by comments in the rulemaking docket.\28\ PHMSA also
stated that it may adjust the HMR's regulatory framework governing rail
tank car transportation of LNG as more information became available
from its oversight activities.\29\ In fact, PHMSA had already begun
work within the LNG Task Force on a comprehensive set of tasks directed
toward refining PHMSA's knowledge of the risks of rail tank car
transportation of LNG when it issued the LNG by Rail final rule. PHMSA
also expected that it would have the benefit of the TRB committee's
study on LNG by rail that Congress had directed for the express purpose
of informing pertinent PHMSA rulemakings. Lastly, PHMSA understood it
would have time to amend the HMR to integrate insights from those
research activities, as it could take time to build a fleet of
dedicated DOT-113C120W9 tank cars, as stated in the RIA.\30\
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\26\ See, e.g., 85 FR 44995 (``PHMSA recognizes that there is
ongoing and potential future research related to the transportation
of LNG by all modes. The Agency will continue to use this research
to inform potential future regulatory activity, as appropriate.'').
\27\ 85 FR 45016 (describing market demand uncertainties) and
45019-21 (describing ongoing efforts to improve emergency planning
and emergency response training and resources); Docket No. PHMSA-
2018-0025-0478 at 35 (discussing uncertainties regarding GHG
emissions impacts of that rulemaking).
\28\ 85 FR 44996.
\29\ 85 FR 44995.
\30\ Docket No. PHMSA-2018-0025-0479 at 19.
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Uncertainty regarding the potential benefits and safety and
environmental risks of rail transportation of LNG under the HMR has
persisted longer than PHMSA anticipated when it issued the LNG by Rail
final rule, and has in fact increased as a result of the release of the
TRB Phase I Report on June 15, 2021. Uncertainty has persisted longer
than expected because the COVID-19 public health emergency has delayed
the completion of research efforts to confirm and enhance PHMSA and
FRA's knowledge of public safety and environmental risks attendant in
rail tank car transportation of LNG. As explained in the TRB Phase I
Report, several of the tasks that had been scheduled for completion by
early 2021 will not be completed before late 2021 or 2022. Delivery of
the TRB Phase I Report was expected March 31, 2021, but the report was
issued June 15, 2021.
Uncertainty also has increased because, while the TRB committee
generally commended PHMSA and FRA's efforts under the LNG Task Force,
the TRB committee identified a number of information gaps in its and
the LNG Task Force's work that PHMSA was not aware of when it issued
the LNG by Rail final rule. The gaps concern testing and the evaluation
of public safety and environmental risks (e.g., relating to full-scale
impact testing, pool fire testing, worst-case analysis, and
quantitative risk assessment)--including testing on which PHMSA had
relied in the LNG by Rail final rule.\31\ The data gaps identified by
the TRB committee might have been resolved by this point in time, but
they currently remain unresolved because of the disruptions caused by
the COVID-19 public health emergency. Further, the committee identified
opportunities to improve the work of the LNG Task Force in
understanding the risks to the public, workers, and the environment
from rail tank car transportation of LNG, which potentially could
further reduce uncertainties in the future and put PHMSA in a better
position to evaluate risks as it moves forward with its companion
rulemaking. The TRB committee also emphasized the need for a robust
understanding of the potential risks to public and worker safety
arising from releases during loading, unloading, and transloading of
LNG tank cars, and improved emergency planning and response training
and resources, further underscoring the importance of PHMSA taking
additional time to ensure it fully understands and considers
uncertainties.
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\31\ See 85 FR 45006 (full-scale impact testing), 45012 (pool
fire testing), and 45013 (quantitative risk assessment).
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The COVID-19 public health emergency and other developments have
also exacerbated uncertainties in near- and long-term market demand for
rail transportation of LNG bounding the potential benefits and risks to
public safety and the environment from the LNG by Rail final rule. The
FEA supporting the LNG by Rail final rule acknowledged the complexity
of the economics driving whether demand for natural gas transport
outside the pipeline network as LNG would be met through the
transportation in tank cars under the LNG by Rail final rule or by
alternatives (one or more of highway transportation of LNG via MC-338
insulated cargo tanks, rail transportation of LNG pursuant to SP, or
rail transportation of LNG via portable tank pursuant to FRA
approval).\32\ The COVID-19 public health emergency has complicated
that calculus further by causing economic disruption throughout the
natural gas industry, impacting LNG infrastructure investment
directly.\33\ Additionally, since the LNG by Rail final rule became
effective, LNG markets have seen a number of announcements portending
potentially fundamental supply and demand changes in international LNG
markets.\34\ Consequently, PHMSA believes there is more uncertainty now
than when the LNG by Rail final rule was issued regarding whether,
when, and where rail tank car transport of LNG--and by extension, any
potential benefits and public safety/environmental risks--will
materialize.
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\32\ Docket No. PHMSA-2018-0025-0478 at 11, 26-29.
\33\ See, e.g., Kravtosova & DiSavinio, Reuters, ``LNG
Investments Vanish in 2020 as Coronavirus Slashes Oil and Gas
Prices,'' (Sep. 9, 2020), https://www.reuters.com/article/us-lng-exports-investment-analysis/lng-investments-vanish-in-2020-as-coronavirus-slashes-oil-and-gas-prices-idUSKBN2602PY.
\34\ See, e.g., DiSavinio, Reuters, ``For LNG Developers,
Another Year of Cancelled Projects'' (May 18, 2021), https://www.reuters.com/business/energy/lng-developers-another-year-canceled-projects-2021-05-18/; Shiryaevskaya, Stapczynski &
Ratcliffe, Bloomberg, ``King of LNG Undercuts Rivals to Keep
Dominating World Market'' (May 19, 2021), https://www.bloomberg.com/news/articles/2021-05-19/king-of-lng-undercuts-rivals-in-bid-to-dominate-global-market; Stapczynski. Bloomberg, ``Global LNG Market
Faces Shakeup from Japan's Green Shift'' (Jul. 26, 2021), https://www.bloomberg.com/news/articles/2021-07-26/japan-s-green-ambitions-threaten-the-lng-market-it-helped-create.
---------------------------------------------------------------------------
PHMSA believes the increased uncertainty regarding the potential
benefits and safety and environmental consequences of rail
transportation of LNG pursuant to the LNG by Rail final rule warrants
temporary suspension while PHMSA evaluates (under RIN 2137-AF54)
whether and under what circumstances the HMR should allow rail
transportation of LNG. As explained above, research activity that PHMSA
had expected would corroborate its understanding of the safety and
environmental risks attendant in rail transportation of LNG has been
delayed, while TRB's peer review of testing cited in the LNG by Rail
final rule has raised additional questions.\35\ Uncertainties in
[[Page 61736]]
the underlying economic dynamics driving the potential benefits and
public safety and environmental risks considered in the LNG by Rail
final rule have increased (e.g., the quantity of LNG that will move by
rail, the routes involved, and whether new transportation capacity
would induce more natural gas extraction). PHMSA believes these
increased uncertainties cast doubt on the continued validity of the
balance between potential benefits and public safety and environmental
risks underpinning the LNG by Rail final rule.
---------------------------------------------------------------------------
\35\ PHMSA also notes that, even as there is less certainty
regarding the potential benefits associated with the LNG by Rail
final rule, there is greater scientific certainty that one of those
potential benefits would entail significant environmental
consequences. Specifically, the LNG by Rail final rule touted the
potential for increased natural gas (methane) production as a
potential benefit of that rulemaking. See, e.g., 85 FR 44995.
However, more recent science has underscored the urgency of limiting
such additional production for avoiding the worst consequences from
anthropogenic climate change from indirect emissions associated with
production and transportation activity. See, e.g., ``Sixth
Assessment Report--Working Group I: Physical Science Basis'' at TS-
68, 6-11, 6-73 (Aug. 2021), https://www.ipcc.ch/report/ar6/wg1/#FullReport (last visited Aug. 19, 2021) (explaining the urgency of
reducing GHG emissions--in particular, short-term contributors such
as methane); Intl. Energy Agency, ``Net Zero by 2050: A Roadmap for
the Global Energy Sector'' at 99 (May 2021) (noting the urgency of
avoiding new natural gas production fields in order to meet net-zero
policy goals).
---------------------------------------------------------------------------
A temporary suspension, however, will give PHMSA and FRA the
opportunity to complete a comprehensive evaluation of the benefits and
risks of rail tank car transportation of LNG in the companion
rulemaking before any LNG moves by rail under the HMR. Although--as
explained below--PHMSA and FRA understand that rail tank car
transportation of LNG is neither occurring nor expected to occur in the
near future, temporary suspension of the LNG by Rail final rule ensures
avoidance of potential risks to public and worker safety and the
environment from such transportation while that parallel rulemaking
proceeds. Suspension would also ensure HMR authorization of rail
transportation of LNG reflects the ``best science'' available,\36\
including additional information obtained from the ongoing and delayed
research efforts of the LNG Task Force, the forthcoming TRB Phase II
Report expected in mid-2022, and continuing developments in scientific
understanding of the near-term risks of climate change from enhanced
natural gas transportation investments. Suspension would allow
consideration of additional public comment, particularly on issues such
as public and worker safety, environmental risks, and environmental
justice, as well as on any additional testing or other information
generated by PHMSA, FRA, and the TRB.
---------------------------------------------------------------------------
\36\ See ``Presidential Memorandum on Restoring Trust in
Government Through Scientific Integrity and Evidence-Based
Policymaking'' (Jan. 27, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/memorandum-on-restoring-trust-in-government-through-scientific-integrity-and-evidence-based-policymaking/(requiring Federal agencies to make ``evidence-based
decisions'' informed by the ``best available science and data'' in
their regulatory activity).
---------------------------------------------------------------------------
Therefore, PHMSA proposes to add a new special provision 439
prohibiting LNG transportation in rail tank cars until issuance of a
final rule concluding the rulemaking proceeding under RIN 2137-AF54, or
June 30, 2024, whichever is earlier.
B. No Material Adverse Impact on Reliance Interests
PHMSA does not expect temporary suspension of transporting LNG by
rail tank car will have a material adverse impact on serious reliance
interests. Despite issuance of the LNG by Rail final rule in July 2020,
LNG has not been transported in rail tank cars, and PHMSA is unaware of
any planned movements in the near future. The development of the
necessary infrastructure--in particular, construction of DOT-113C120W9
tank cars--to transport LNG by rail under the HMR demands significant
financial investment, long-term commitment, and considerable planning.
The DOT-113C120W9 tank car was introduced for LNG transport and would
be impractical for use with other hazardous materials because another,
more feasible specification (i.e., DOT-113C120W) is already available
for other Class 2 cryogenic flammable liquids that are authorized to be
transported by rail. Therefore, a dedicated LNG tank car fleet would
need to be built, and there may be construction delays because of
limited capacity in the rail car manufacturing industry. At this time,
PHMSA is unaware of any orders having been placed for manufacture of
new DOT-113C120W9 tank cars.
Nor are PHMSA and FRA aware of near-term plans to transport LNG in
existing DOT-113 rail tank cards under DOT-SP 20534. ETS, the holder of
DOT-SP 20534, is a subsidiary of New Fortress Energy Inc. (NFE)
according to documents filed with the U.S. Securities and Exchange
Commission (SEC). NFE develops and operates energy infrastructure,
including LNG terminals, power generation facilities, and natural gas
logistics infrastructure, and provides supply and logistics services to
customers both domestically and internationally. NFE noted in its Q2-
2021 Form 10-Q: Quarterly Report filed in August with the SEC that it
has not yet issued a final notice to proceed to its engineering,
procurement, and construction contractors for its liquefaction facility
in Wyalusing, PA--an origination-point for the route authorized by
PHMSA in DOT-SP 20534.\37\ Further, noting the volatility of the
current LNG market, NFE admits ``there can be no assurances that [it]
will complete the Pennsylvania Facility or be able to supply [its]
Facilities with LNG produced at [its] own Liquefaction Facilities.''
PHMSA also understands that NFE's Wyalusing, PA, facility is the
subject of a pending, contested petition for Declaratory Order filed
with the Federal Energy Regulatory Commission (FERC) that may determine
whether that facility requires a FERC certificate before operating as
an LNG export terminal.\38\
---------------------------------------------------------------------------
\37\ New Fortress Energy Inc. 10-Q Quarterly Report for Quarter
Ending June 30, 2021, (Aug. 6, 2021), https://sec.report/Document/0001140361-21-027401/. PHMSA also notes that ETS is required by ] 12
of DOT-SP 20534 to provide periodic reports on the status of efforts
to manufacture and deliver tank cars intended for use pursuant to
that SSP.
\38\ See FERC Docket No. CP20-524 (in re Petition for
Declaratory Order of Bradford County Real Estate Partners LLC).
Should FERC declare that an export facility certificate is needed,
it could take an additional two years (or longer) to obtain that
certificate from FERC.
---------------------------------------------------------------------------
Nevertheless, while PHMSA does not expect the transport of LNG by
rail tank car in the near future for the reasons discussed above,
shippers may continue to seek authorization to transport LNG by rail in
rail tank cars pursuant to a DOT SP issued by PHMSA or in portable
tanks subject to an approval by FRA. PHMSA's SP procedures thoroughly
explain the information applicants must include in their application
and PHMSA's process, which includes public docketing, an opportunity
for public comment, and an explanation for why an application is
granted or denied.\39\ The procedures also include an opportunity for
reconsideration and an appeal process, after which a decision is the
final administrative action.\40\ FRA's approval process has similar
procedures. Indeed, FRA recently received a petition from Alaska
Railroad Corporation to extend an FRA approval to ship LNG by rail in
portable tanks. In response to the requested extension, FRA published a
notice of conditional approval and initiated a 60-day comment period
ending on August 23, 2021, to ensure that FRA had opportunity to
consider any additional views or information that stakeholders
provided.\41\ As PHMSA is unaware of any potential near-term movement
of LNG by rail tank cars and any potential shippers could avail
themselves of the SP (for the potential transportation of LNG by rail
tank car) or FRA approval processes (for the potential transportation
of LNG by portable tank on rail cars), PHMSA expects the proposed
suspension of LNG by rail transportation to have a minimal economic
impact. For more
[[Page 61737]]
information, see discussion of the cost analysis in accordance with
Executive Order 12866 (``Regulatory Planning and Review'').\42\
---------------------------------------------------------------------------
\39\ 49 CFR part 107, subpart B.
\40\ 49 CFR part 107, subpart B.
\41\ FRA, ``Notice of Conditional Approval,'' 86 FR 33472 (Jun.
24, 2021).
\42\ 58 FR 51735 (Oct. 4, 1993).
---------------------------------------------------------------------------
However, PHMSA solicits comment from stakeholders on potential
economic, public safety, and environmental benefits and adverse impacts
of the proposed rulemaking. PHMSA also solicits comments on the length
of its proposed suspension period and whether PHMSA should modify its
proposed expiration date. PHMSA notes that it selected the proposed
date (June 30, 2024) for expiration of the temporary suspension to give
PHMSA adequate time to incorporate the results of the forthcoming TRB
Phase II Report--expected in mid-2022--within its companion rulemaking
under RIN 2137-AF54.
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority
This NPRM is published under the authority of the Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section
5103(b) of the HMTA authorizes the Secretary of Transportation to
``prescribe regulations for the safe transportation, including
security, of hazardous materials in intrastate, interstate, and foreign
commerce.'' The Secretary has delegated the authority granted in the
HMTA to the PHMSA Administrator at 49 CFR 1.97(b).
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866 (``Regulatory Planning and Review'') \43\
requires that ``agencies should assess all costs and benefits of
available regulatory alternatives, including the alternative of not
regulating.'' Agencies should consider quantifiable measures and
qualitative measures of costs and benefits that are difficult to
quantify. Further, Executive Order 12866 requires that ``agencies
should select those [regulatory] approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity), unless a
statute requires another regulatory approach.'' Similarly, DOT Order
2100.6A (``Rulemaking and Guidance Procedures'') requires that
regulations issued by PHMSA and other DOT Operating Administrations
should consider an assessment of the potential benefits, costs, and
other important impacts of the proposed action and should quantify (to
the extent practicable) the benefits, costs, and any significant
distributional impacts, including any environmental impacts.
---------------------------------------------------------------------------
\43\ Ibid.
---------------------------------------------------------------------------
Executive Order 12866 and DOT Order 2100.6A require that PHMSA
submit ``significant regulatory actions'' to the Office of Management
and Budget (OMB) for review. This rulemaking is considered a
significant regulatory action under section 3(f)(4) of Executive Order
12866 because the temporary suspension of the LNG by Rail final rule
could raise novel legal or policy issues. This NPRM has, therefore,
been reviewed by OMB.
As discussed at greater length above, PHMSA does not expect that
the proposed temporary suspension of the amendments adopted in the LNG
by Rail final rule will have material, adverse impacts. Should the
proposed rule be adopted such that HMR authorization to move LNG by
rail tank car is temporarily suspended, no LNG could move under the HMR
in a rail tank car until PHMSA completes its companion rulemaking under
RIN 2137-AF54, or June 30, 2024, whichever is earlier. Notwithstanding
the considerable uncertainties regarding the market demand for rail
tank car transportation of LNG, PHMSA expects little or no LNG
transportation by rail tank car would have moved during the proposed
suspension period for the reasons explained above; therefore, PHMSA
expects little or no direct economic impact of a temporary suspension.
Indeed, PHMSA's temporary suspension may in fact reduce economic burden
by discouraging a shipper from ordering rail tank cars compliant with
the LNG by Rail final rule when the companion rulemaking (under RIN
2137-AF54) may adopt different requirements. Additionally, should any
potential shippers need to transport LNG by rail tank car during the
suspension period, they could avail themselves of the PHMSA SP or FRA
approval processes for such transport. Further, as explained below,
temporary suspension guarantees avoidance of potential adverse public
safety and environmental impacts (including, but not limited to,
contribution of direct and indirect GHG emissions) that could have
arisen from rail tank car transportation of LNG under the HMR. Lastly,
PHMSA notes that the limited duration of its proposed suspension would
also mitigate any adverse economic, public safety, or environmental
impacts that could arise.
PHMSA acknowledges that, in the (unlikely) event demand for rail
tank car transportation under the LNG by Rail final rule would
materialize during the suspension period in the absence of this rule,
the proposed temporary suspension could result in procedural or
compliance costs, lost business opportunities, and safety and
environmental risks. Obtaining and complying with the conditions
imposed within PHMSA-issued DOT SPs and FRA approvals authorizing rail
transportation of LNG would incur costs due to regulatory uncertainty,
as well as delay and compliance burdens. Each of those consequences
would entail higher procedural or compliance costs, which could in turn
result in lost business opportunities, or at minimum, diminish the
business benefits of rail transportation of LNG.\44\ Further, the DOT
SP and FRA approval alternatives would entail unique public safety and
environmental risks, which are a function of the conditions imposed by
each of PHMSA and FRA in each authorization.
---------------------------------------------------------------------------
\44\ See, e.g., Docket No. PHMSA-2018-0025-00478 at 5, 30
(noting that the grantee of DOT-SP 20534 has indicated that it was
unlikely to employ ISO tanks for rail transportation of LNG because
of the high costs of that approach) and 35 (noting the potential for
LNG by Rail final rule to create new business opportunities).
---------------------------------------------------------------------------
Alternatively, the unavailability of HMR authorization for rail
tank car transportation of LNG could prompt shipping LNG by highway via
MC-338 insulated cargo tanks. This alternative may involve higher costs
than rail transportation, as each MC-338 cargo tank (which has
approximately half the capacity of a DOT-113 tank car) would have to be
shipped individually, likely forfeiting the economies of scale from
rail transportation via tank car (under the LNG by Rail final rule or a
DOT SP) or ISO tank (under an FRA approval). For this reason, PHMSA
does not expect shippers to opt for LNG transportation via MC-338 cargo
tank as a substitute for rail tank car transportation pursuant to the
LNG by Rail final rule. To the extent that transportation via MC-338
cargo tank does occur, it would entail different environmental risks
(including, but not limited to, greater risk of accidents and more
direct GHG emissions than rail transportation of the same volume of
LNG) than the transportation of LNG by rail tank car.\45\
---------------------------------------------------------------------------
\45\ Id. at 33-34, 56 (discussing higher direct GHG emissions
from highway transportation) and 37-38 (discussing higher risk of
crashes from highway transportation).
---------------------------------------------------------------------------
Therefore, PHMSA expects that, in the event that the proposed
suspension of the LNG by Rail final rule has any adverse economic
impact, it would consist largely of lost business opportunities as a
result of higher procedural or compliance costs and lower economies of
scale from
[[Page 61738]]
alternatives to rail transportation under the LNG by Rail final rule.
Any such adverse economic impacts are expected to be unlikely and time-
limited. Further, any lost business opportunities could be offset by
avoided safety and environmental risks if the suspension reduces the
transportation of LNG (i.e., if it prevents transportation or
production of LNG that would otherwise occur).
Because temporary suspension of the LNG by Rail final rule entails
limited risk of adverse economic impact even as it guarantees avoidance
of potential public safety and environmental impacts (including
significant environmental risks such as indirect GHG emission
contributions to climate change), PHMSA submits the proposed HMR
amendments herein. PHMSA solicits comment from stakeholders on
potential impacts of the proposed rulemaking.
C. Executive Order 13132
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism'') \46\
and its implementing Presidential Memorandum (''Preemption'').\47\
Executive Order 13132 requires agencies to assure meaningful and timely
input by State and local officials in the development of regulatory
policies that may have ``substantial direct effects on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government.''
---------------------------------------------------------------------------
\46\ 64 FR 43255 (Aug. 10, 1999).
\47\ 74 FR 24693 (May 22, 2009).
---------------------------------------------------------------------------
This rulemaking may preempt State, local, and Native American Tribe
requirements, but does not propose any regulation that has substantial
direct effects on the States, the relationship between the national
government and the States, or the distribution of power and
responsibilities among the various levels of government.
The Federal hazmat law contains an express preemption provision at
49 U.S.C. 5125(b) that preempts State, local, and Tribal requirements
on certain covered subjects, unless the non-federal requirements are
``substantively the same'' as the Federal requirements, including the
following:
(1) The designation, description, and classification of hazardous
material;
(2) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(4) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) the design, manufacture, fabrication, inspection, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material in commerce.
This rule addresses subject items (2) and (5) above, which are
covered subjects, and therefore, non-federal requirements that fail to
meet the ``substantively the same'' standard are vulnerable to
preemption under the Federal hazmat law. Moreover, PHMSA will continue
to make preemption determinations applicable to specific non-federal
requirements on a case-by-case basis, using the obstacle, dual
compliance, and covered subjects tests provided in Federal hazmat law.
This rule also incorporates certain FRA requirements under the
former Federal Railroad Safety Act of 1970, as repealed, revised,
reenacted, and recodified (FRSA; 49 U.S.C. 20106), and the former
Safety Appliance Acts, as repealed, revised, reenacted, and recodified
(SAA; 49 U.S.C. 20301-20302, 20306) that may potentially preempt
certain State requirements. Such FRSA and SAA requirements would apply
to certain operators and offerors of LNG by Rail tank cars, including
operational requirements for distributed power or two-way end-of-train
(EOT) power braking systems.
D. Executive Order 13175
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13175 and DOT Order 5301.1
(``Department of Transportation Policies, Programs, and Procedures
Affecting American Indians, Alaska Natives, and Tribes''). Executive
Order 13175 and DOT Order 5301.1 require DOT Operating Administrations
to assure meaningful and timely input from Native American Tribal
government representatives in the development of rules that
significantly or uniquely affect tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities or the relationship and distribution of
power between the Federal government and Native American Tribes.
In addition to the petitions filed by the environmental groups and
State attorneys general mentioned above, the Puyallup Tribe also
challenged the LNG by Rail final rule and alleged violations of the
Tribal consultation protocols under the National Historic Preservation
Act and Executive Order 13175 and disparate impacts on the Tribe in
violation of Executive Order 12898 and Title VI of the Civil Rights Act
of 1964.
PHMSA assessed the impact of this rulemaking and expects that it
will not significantly or uniquely affect Tribal communities or Native
American Tribal governments. This rulemaking does not impose
substantial compliance costs on Native American Tribal governments, nor
does it mandate Tribal action. Insofar as PHMSA expects the rulemaking
would not adversely affect the safe transportation of hazardous
materials generally, PHMSA does not expect it would entail
disproportionately high adverse risks for Tribal communities. PHMSA
submits that the proposed rulemaking could in fact reduce risks to
Tribal communities, as it could avoid the release of hazardous
materials by railroad in the vicinity of Tribal communities. For these
reasons, PHMSA does not expect the funding and consultation
requirements of Executive Order 13175 and DOT Order 5301.1 to apply.
However, PHMSA solicits comment from Native American Tribal governments
and communities on potential impacts of the proposed rulemaking.
E. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to consider whether a rulemaking would have a ``significant
economic impact on a substantial number of small entities'' to include
small businesses, not-for-profit organizations that are independently
owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations under 50,000. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where possible to
do so and still meet the objectives of applicable regulatory statutes.
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') \48\ requires agencies to establish procedures and
policies to promote compliance with the Regulatory Flexibility Act and
to ``thoroughly review draft rules to assess and take appropriate
account of the potential impact'' of the rules on small businesses,
governmental jurisdictions,
[[Page 61739]]
and small organizations. The DOT posts its implementing guidance on a
dedicated web page.\49\
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\48\ 67 FR 53461 (Aug. 16, 2002).
\49\ DOT, ``Rulemaking Requirements Related to Small Entities,''
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last visited Jun. 17, 2021).
---------------------------------------------------------------------------
This rulemaking has been developed in accordance with Executive
Order 13272 and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered. As explained
above, PHMSA expects that the temporary suspension of the LNG by Rail
final rule proposed herein will not have a significant economic impact
generally, much less a significant economic impact on a substantial
number of small entities. However, PHMSA solicits comments on the
anticipated economic impacts to small entities.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
no person is required to respond to any information collection unless
it has been approved by OMB and displays a valid OMB control number.
Pursuant to 44 U.S.C. 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must
provide interested members of the public and affected agencies an
opportunity to comment on information collection and recordkeeping
requests.
PHMSA has analyzed this NPRM in accordance with the Paperwork
Reduction Act. PHMSA currently accounts for security plan burdens under
OMB Control Number 2137-0612, ``Hazardous Materials Security Plans.''
In the LNG by Rail final rule, PHMSA required any rail carrier
transporting a tank car quantity of UN1972 (Methane, refrigerated
liquid (cryogenic liquid) or Natural gas, refrigerated liquid
(cryogenic liquid)) to comply with the additional rail transportation
safety and security planning requirements. Following publication of the
LNG by Rail final rule, PHMSA published both a 60-day \50\ and 30-day
\51\ notice and comment to provide an opportunity for public comment on
the estimated increase in burden. PHMSA did not receive comments to
either notice. Subsequently, PHMSA submitted the revision to OMB and
received approval for the increased burden. As PHMSA proposes a
temporary suspension of the authorization to ship LNG by rail tank car,
as was codified in the LNG by Rail final rule, PHMSA estimates this
rulemaking would result in a decrease in the burden associated with
additional rail transportation safety and security planning
requirements. The following reflects this estimated decrease in burden:
---------------------------------------------------------------------------
\50\ 85 FR 46220 (Jul. 31, 2020).
\51\ 85 FR 73128 (Nov. 16, 2020).
\52\ Occupation labor rates based on 2020 Occupational and
Employment Statistics Survey (OES) for ``Transportation, Storage,
and Distribution Managers (11-3071)'' in the Transportation and
Warehousing industry. See https://www.bls.gov/oes/current/oes113071.htm. The hourly mean wage for this occupation ($50.53) is
adjusted to reflect the total costs of employee compensation based
on the BLS Employer Costs for Employee Compensation Summary, which
indicates that wages for civilian workers are 68.3 percent of total
compensation (total wage = wage rate/wage % of total compensation).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Decrease in Decrease in Decrease in Decrease in
Decrease in primary route analysis number of number of Burden hours total burden Salary cost total salary total burden
railroads routes per route hours per hour \52\ cost cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class I Railroads....................... 0 (2) 80 (160) $73.98 ($11,837) $0
Class II Railroads...................... 0 (1) 80 (80) 73.98 (5,919) 0
Class III Railroads..................... 0 (1) 40 (40) 73.98 (2,959) 0
---------------------------------------------------------------------------------------------------------------
Total............................... 0 (4) .............. (280) .............. (20,715) 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Decrease in Decrease in Decrease in Decrease in
Decrease in alternate route analysis number of number of Burden hours total burden Salary cost total salary total burden
railroads routes per route hours per hour \53\ cost cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class I Railroads....................... 0 (2) 120 (240) $73.98 ($17,756) $0
Class II Railroads...................... 0 (1) 120 (120) 73.98 (8,878) 0
Class III Railroads..................... 0 (1) 40 (40) 73.98 (2,959) 0
---------------------------------------------------------------------------------------------------------------
Total............................... 0 (4) .............. (280) .............. (29,593) 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Annual Decrease in Number of Respondents: 0.
---------------------------------------------------------------------------
\53\ Ibid.
---------------------------------------------------------------------------
Total Annual Decrease in Number of Response: 8.
Total Annual Decrease in Burden Hours: 680.
Total Annual Decrease in Salary Costs: $50,308.
Total Annual Decrease in Burden Costs: $0.
PHMSA requests comments on the information collection and
recordkeeping burden that would be reduced by the temporary suspension
of the LNG by Rail final rule. Address written comments to the DOT
Docket Operations Office as identified in the ADDRESSES section of this
rulemaking. Comments regarding information collection burdens must be
received prior to the close of the comment period identified in the
DATES section of this rulemaking. Requests for a copy of this
information collection should be directed to Steven Andrews or Shelby
Geller, (202) 366-8553, [email protected], Standards and Rulemaking
Division (PHH-10), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
If these proposed HMR amendments are adopted in a final rule, PHMSA
will submit the revised information collection and recordkeeping
requirements to OMB for approval.
G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et
seq.) requires agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private
sector. For any NPRM or final rule that includes a Federal mandate that
may result in the expenditure by State, local, and Tribal governments,
or by the private sector of $100 million or more in 1996 dollars in any
given year,
[[Page 61740]]
the agency must prepare, amongst other things, a written statement that
qualitatively and quantitatively assesses the costs and benefits of the
Federal mandate.
This proposed rulemaking does not impose unfunded mandates under
the UMRA. As explained above, it is not expected to result in costs of
$100 million or more in 1996 dollars on either State, local, or Tribal
governments, in the aggregate, or to the private sector in any one
year, and is the least burdensome alternative that achieves the
objective of the rule.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
et seq.), requires that Federal agencies analyze proposed actions to
determine whether the action will have a significant impact on the
human environment. CEQ implementing regulations (40 CFR parts 1500-
1508) require Federal agencies to conduct an environmental review
considering (1) the need for the action, (2) alternatives to the
action, (3) probable environmental impacts of the action and
alternatives, and (4) the agencies and persons consulted during the
consideration process. DOT Order 5610.1C (``Procedures for Considering
Environmental Impacts'') establishes DOT procedures for evaluation of
environmental impacts under NEPA and its implementing regulations.
(1) The Need for the Action
PHMSA has determined that the recommendations from the TRB
committee, its ongoing research, and recent events stemming from the
COVID-19 public health emergency predicate the need to re-evaluate the
amendments authorized in the LNG by Rail final rule. Research activity
that PHMSA had expected would enhance its understanding of the risks
attendant in rail transportation of LNG has been delayed, and
uncertainties have increased in whether there will be any potential
benefits, and in the underlying economic dynamics bounding those risks
(e.g., the quantity of LNG that will move by rail, and the routes
involved). Therefore, PHMSA proposes to amend the HMR to suspend
authorization of LNG transportation in a rail tank car pending further
analysis and completion of a companion rulemaking that will consider
changes to the conditions under which LNG could be moved by rail, to
potentially include additional safety, environmental, and environmental
justice protections. This action will provide PHMSA an opportunity to
review recent actions that could be obstacles to Administration
policies promoting public health and safety, the environment, and
climate change mitigation; and to evaluate the results of ongoing and
delayed research efforts to ensure the safe transportation of LNG by
rail tank car.
(2) Alternatives to the Action
In proposing this rulemaking, PHMSA is considering the following
alternatives:
No Action Alternative
If PHMSA were to select the No Action Alternative, current
regulations authorizing the transport of LNG in rail tank cars would
remain in effect and no provisions would be amended or added.
Therefore, the HMR would continue to authorize the transportation of
LNG in DOT-113C120W9 tank cars with a 9/16-inch outer tank composed of
TC-128B normalized steel. The following operational controls and safety
measures would also remain in effect:
Each tank car must be operated in accordance with Sec.
173.319, which includes:
[cir] Testing of relief valves every 5 years
[cir] annual replacement of rupture discs
[cir] thermal integrity tests following an average daily pressure
rise during any shipment exceeding 3 psig per day
[cir] other requirements specific to liquids in cryogenic tank
cars.
49 CFR part 179, subpart F contains detailed design,
construction, and operational requirements for DOT-113C120W tank cars
with the specification suffix ``9'' to be used in rail transportation
of LNG.
Trains transporting 20 or more tank cars of LNG in a
block, or 35 such tank cars throughout the train, must be equipped and
operated with a two-way EOT device, pursuant to the requirements in 49
CFR part 232, subpart E, or a distributed-power (DP) locomotive as
defined in 49 CFR 229.5.
The offeror must remotely monitor each tank car while in
transportation for pressure and location.
The offeror must notify the carrier if the tank pressure
rise exceeds 3 psig over any 24-hour period.
Trains transporting any quantity of LNG must comply with
the route planning requirements in Sec. 172.820, which requires rail
carriers transporting LNG by rail tank car to conduct an annual route
analysis considering, at a minimum, 27 risk factors listed in appendix
D to part 172.
Each LNG tank car must have:
[cir] A reclosing pressure relief device with a start-to-discharge
pressure of 75 psig;
[cir] a non-reclosing pressure relief device set to discharge at
the tank test pressure;
[cir] a maximum permitted filling density (percent by weight) of
37.3 percent;
[cir] a design service temperature of -162 [deg]C (-260 [deg]F);
[cir] a maximum pressure when offered for transportation not to
exceed 15 psig;
[cir] a minimum steel thickness, after forming, on the outer tank
shell and tank heads of 9/16 inch, which is thicker than the
requirement for other DOT-113C120W tank cars; and
[cir] an outer tank shell constructed of AAR TC-128, Grade B
normalized steel plate as specified in Sec. 179.100-7(a), which has a
higher tensile strength of 81,000 psi which makes it stronger than that
used for the existing DOT-113 outer shell.
The FEA, which--except for the finding of no significant impact
therein--is adopted by reference into this NPRM, examined how the above
requirements were imposed to reduce risks to human safety and the
environment from the transportation of LNG in rail tank cars and
incidents occurring as a result of this transportation.\54\ The No
Action Alternative would allow the shipment of LNG in rail tank cars,
and PHMSA could continue to consider whether additional mitigations are
necessary based on the expert recommendations from the TRB Phase I
Report and results from ongoing and delayed research efforts.
---------------------------------------------------------------------------
\54\ See Docket No. PHMSA-2018-0025-0478.
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Proposed Action Alternative
This alternative is the current proposal as it appears in this
NPRM, proposing to add a new special provision to the HMR that would
suspend the transportation of LNG in rail tank cars while PHMSA
undergoes a comprehensive review to ensure the safe transportation of
LNG by rail in accordance with ongoing research and incorporation of
recommendations from the TRB, as well as the best available economic
analysis and climate science. Rail transport of LNG would be permitted
only on an ad hoc basis as authorized by the conditions of a PHMSA
special permit (49 CFR 107.105) or in a portable tank secured to a rail
car pursuant to the conditions of an FRA approval (49 CFR 174.63). The
proposed amendments included in this alternative are more fully
discussed in
[[Page 61741]]
the preamble and regulatory text sections of this NPRM.
(3) Probable Environmental Impacts of the Action and Alternatives
No Action Alternative
If PHMSA were to select the No Action Alternative, current
regulations would remain in place without suspension. As described in
the FEA, the No Action Alternative could pose risks to public safety
and the environment because the authorization under the HMR to offer
shipments of LNG by rail tank car would remain in place. LNG poses
potential hazards as a cryogenic liquefied flammable gas, including
cryogenic temperature exposure, fire, and asphyxiation hazards.
Transportation of any hazardous material introduces risk to safety and
the environment, and each additional tank car theoretically increases
the overall risk of an incident occurring and the quantity that could
be released in the event of a derailment. While this is true for all
hazardous materials transportation, PHMSA seeks to better understand
the risks inherent to LNG transportation in the DOT-113C120W9,
especially given the LNG by Rail final rule authorized large quantities
to be transported at some point in the future. The 2020 FEA explained
that transporting LNG in rail tank cars is expected to be safer than
transporting LNG by truck on highways--however, it is possible that
allowing LNG to be transported in rail tank cars would increase the
amount of LNG transported, and therefore a direct comparison of the
risks by rail and highway may be misleading. PHMSA will also consider,
based on existing rail infrastructure locations and anticipated routes,
whether transportation of LNG in rail tank cars could pose
disproportionate harm or risk to communities of color or low-income
communities. As described in the preamble to this proposed rule,
various market and other uncertainties exist regarding specific routes
that may be used for the transport of LNG by rail tank car.
No release of LNG vapor to the environment is allowed during the
normal transportation of LNG in tank cars whether by roadway or
railway. However, methane is odorless, and LNG contains no odorant,
making detection of a release resulting from an incident difficult
without a detection device. Releases of LNG due to venting or to
accidents, without immediate ignition, involving either an MC-338 cargo
tank, a portable tank, or a DOT-113C120W9 rail tank car have the
potential to create flammable vapor clouds of natural gas because
recently gasified LNG does not dissipate in the atmosphere as quickly
as ambient-temperature natural gas. Large releases of LNG due to the
breach of the inner tank of these transport vessels could result in a
pool fire, vapor fire, and explosion hazards if methane vapors become
confined. These flammability hazards pose a risk of higher potential
impacts than localized cryogenic hazards.
Some commenters to the LNG by Rail final rule argued that the
authorization of LNG by rail would further incentivize the production
of natural gas, which is a fossil fuel. Methane has much greater heat
trapping potential in the atmosphere than carbon dioxide in the short
term. Thus, methane is considered a potent GHG, and comprises a
significant portion of the United States' GHG emissions. While methane
leaks are highly unlikely during transportation in the DOT-113C120W9
due to tank car design, increased natural gas production could lead to
indirect environmental impacts of increased methane emissions released
during production, loading and unloading, or at other times during its
life cycle. In considering whether the authorization could further
incentivize the production of natural gas, PHMSA will consider the
scope of existing natural gas production and transportation via natural
gas pipeline and other modes of transportation.
The FEA for the LNG by Rail final rule discussed potential
environmental benefits that could be associated with the authorization
to transport LNG by rail tank car. First, PHMSA discussed that the
authorization could allow for the delivery of natural gas to locations
dependent on more polluting energy forms, such as coal, diesel, heating
oil, or firewood.\55\ Use of natural gas in such areas, whether foreign
or domestic, could allow for a reduction in polluting and climate-
warming emissions. Additionally, the authorization to transport LNG by
rail tank car could potentially replace some shipments of LNG by
highway. As discussed in the FEA for the LNG by Rail rule, highway
transportation is less efficient in comparison to rail transportation
when considering fuel use, combustion emissions, and climate change
impacts. However, in order to supplement, reduce, or replace highway
transportation, rail infrastructure would need to exist between the
origin and destination locations or be developed. Finally, the FEA
explored industry claims that the authorization could incentivize the
capture, storage, and liquefaction of natural gas over venting and
flaring of natural gas during oil production and other industrial
activities, in areas where natural gas pipeline capacity is
unavailable. Facilitating the productive end use of by-product methane
could reduce the venting and flaring of natural gas, which causes
methane and carbon dioxide emissions. Similar to other above-described
benefits, it is difficult to predict the extent to which industries
would invest in the equipment, technology, and expertise necessary to
pursue natural gas capture, storage, and liquefaction necessary to
pursue LNG transportation by rail. A suspension of the authorization to
transport LNG by rail could curtail these potential benefits in the
near term.
---------------------------------------------------------------------------
\55\ See, e.g., EPA, Press Release, ``State of Alaska and
Fairbanks North Star Borough receive $14.7 Million EPA grant to
improve air quality,'' (Nov. 2020), https://www.epa.gov/newsreleases/state-alaska-and-fairbanks-north-star-borough-receive-147-million-epa-grant-improve-air (``The Borough will use the grant
funds to continue a woodstove changeout and conversion program
focused on converting more wood burning appliances to cleaner
burning liquid or gas-fueled heating appliances, which have a very
low output of particulate pollution and higher fuel efficiency. Wood
smoke contributes up to 60 to 80 percent of fine particle pollution
levels measured in the Fairbanks North Star Borough.'').
---------------------------------------------------------------------------
Proposed Action Alternative
Under the Proposed Action Alternative, PHMSA would amend the HMR to
suspend authorization of LNG transportation in rail tank cars pending
further analysis and completion of a companion rulemaking or June 30,
2024, whichever is earlier. Therefore, the HMR would not authorize
shippers to transport bulk quantities of LNG by rail tank car. Instead,
LNG by rail would only be permitted pursuant to a DOT SP or in portable
tanks subject to FRA approval. The Proposed Action Alternative would
avoid the risks that transportation of LNG in rail tank cars, and
particularly potential derailments of rail cars transporting LNG, could
pose to public safety and the environment. PHMSA would be able to
further consider whether the transportation of LNG could pose
disproportionate harm or risk to communities of color and communities
with low incomes, which have historically borne the brunt of
deleterious Federal policy decisions. PHMSA would also be able to
further consider whether shipping LNG in rail tank cars is consistent
with public health and safety, environmental protection, and climate
change mitigation; and to evaluate the results of ongoing and delayed
research efforts and collaboration as part of an accompanying
rulemaking under RIN 2137-AF54.
[[Page 61742]]
However, as noted in the FEA for the LNG by Rail final rule, the
use of MC-338 cargo tanks and portable tanks for LNG could increase
over time if rail transport in tank cars were not authorized. Thus,
shippers could have to rely on less efficient transportation mechanisms
in the interim, as highway transportation requires more vehicles to
move the same amount of material as rail transportation--if this
occurs, the potential environmental benefits that could result from the
transportation of bulk quantities of LNG by rail car discussed above
would not be realized in the short term. However, as explained above,
PHMSA does not expect that significant quantities of LNG would be
shipped in rail tank cars during the suspension period. Further, the
loss of economies of scale associated with transport of LNG by rail
tank car could inhibit switching to MC-338 cargo tanks.
(4) Agencies and Persons Consulted During the Consideration Process
PHMSA has coordinated with FRA, the Federal Aviation
Administration, the Federal Motor Carrier Safety Administration, and
the U.S. Coast Guard in the development of this proposed rule. The NPRM
has also been made available to other Federal agencies within the
interagency review process contemplated under Executive Order 12866.
PHMSA solicits, and will consider, comments on the NPRM's potential
impacts on safety and the environment submitted by members of the
public, State and local governments, Tribal communities, and industry.
(5) Proposed Finding of No Significant Impact
The adoption of the Proposed Action Alternative's proposed
suspension would prohibit the transportation of LNG in rail tank cars
while PHMSA and FRA undertake a comprehensive analysis of safety and
environmental issues associated with the transportation of LNG by rail.
As such, PHMSA expects that the HMR amendments in the NPRM would have
no significant impact on the human environment. PHMSA expects that the
Proposed Action Alternative would allow PHMSA to review new information
to evaluate the potential impact on safety, environmental justice, and
GHG emissions. Further, based on PHMSA's analysis of these provisions
described above and insofar as there has been no significant progress
toward the movement of LNG by rail tank car, PHMSA proposes to find
that codification and implementation of the proposed rule would not
result in a significant impact to the human environment.
PHMSA welcomes any views, data, or information related to
environmental impacts that may result from NPRM's proposed
requirements, the No Action Alternative, and other viable alternatives
and their environmental impacts.
I. Executive Order 12898
Executive Orders 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations''),\56\
13985 (``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government''),\57\ 13990 (``Protecting
Public Health and the Environment and Restoring Science To Tackle the
Climate Crisis''),\58\ 14008 (``Tackling the Climate Crisis at Home and
Abroad''),\59\ and DOT Order 5610.2C (``Department of Transportation
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations'') require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects of their programs, policies, and activities on minority
populations, low-income populations, and other underserved and
disadvantaged communities.
---------------------------------------------------------------------------
\56\ 59 FR 7629 (Feb. 16, 1994).
\57\ 86 FR 7009 (Jan. 25, 2021).
\58\ 86 FR 7037 (Jan. 25, 2021).
\59\ 86 FR 7619 (Feb. 1, 2021).
---------------------------------------------------------------------------
PHMSA has evaluated this proposed rule under the above Executive
Orders and DOT Order 5610.2C, and expects it would not cause
disproportionately high and adverse human health and environmental
effects on minority, low-income, underserved, and other disadvantaged
populations and communities. The rulemaking is facially neutral and
national in scope; it is neither directed toward a particular
population, region, or community, nor is it expected to adversely
impact any particular population, region, or community. And insofar as
PHMSA expects the rulemaking would not adversely affect the safe
transportation of hazardous materials generally, PHMSA does not expect
the proposed revisions would entail disproportionately high adverse
risks for minority populations, low-income populations, or other
underserved and disadvantaged communities.
The proposed rulemaking could reduce risks to minority populations,
low-income populations, or other underserved and disadvantaged
communities. Insofar as the proposed HMR amendments could avoid the
release of hazardous materials, the proposed rule could reduce risks to
populations and communities--including any minority, low-income,
underserved, and disadvantaged populations and communities--in the
vicinity of railroad lines. However, as noted in the FEA for the LNG by
Rail final rule, access to LNG may result in potential economic
benefits for underserved communities because of the efficiencies of
transporting LNG by rail, and thereby domestic production,
distribution, and consumption of natural gas could increase. These
potential economic benefits that could result from the transportation
of bulk quantities of LNG by rail car would not be realized by
underserved communities in the short term. In addition, to the extent
that suspending shipment of LNG by rail tank car could increase demand
for shipping LNG by truck on highways, the proposed HMR amendments
could increase risks to environmental justice communities in the
vicinity of those highways.
PHMSA solicits comment on potential impacts to minority, low-
income, underserved, and other disadvantaged populations and
communities of the proposed rulemaking.
J. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to http://www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
http://www.dot.gov/privacy. DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000,\60\ or on DOT's website
at http://www.dot.gov/privacy.
---------------------------------------------------------------------------
\60\ 65 FR 19475 (Apr. 11, 2000).
---------------------------------------------------------------------------
K. Executive Order 13609 and International Trade Analysis
Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \61\ requires that agencies must consider whether the
impacts associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete
[[Page 61743]]
internationally. In meeting shared challenges involving health, safety,
labor, security, environmental, and other issues, international
regulatory cooperation can identify approaches that are at least as
protective as those that are or would be adopted in the absence of such
cooperation. International regulatory cooperation can also reduce,
eliminate, or prevent unnecessary differences in regulatory
requirements.
---------------------------------------------------------------------------
\61\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. Pursuant to the Trade Agreements Act,
the establishment of standards is not considered an unnecessary
obstacle to the foreign commerce of the United States, so long as the
standards have a legitimate domestic objective, such as providing for
safety, and do not operate to exclude imports that meet this objective.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public. PHMSA has
assessed the effects of this rulemaking to ensure that it does not
cause unnecessary obstacles to foreign trade. While the proposal to
suspend the transport of LNG by rail tank car has potential to impact
the United States' export of bulk LNG internationally, there has been
no significant reliance interest or progress toward the near-term
movement of LNG by rail tank cars. As such, PHMSA expects the
amendments herein to pose a minimal impact to international trade if
adopted. Therefore, PHMSA proposes to amend the HMR to suspend
authorization of LNG transportation in a rail tank car pending further
analysis to ensure potential future regulatory actions to allow bulk
transport of LNG by rail promote public health and safety, the
environment, and climate change mitigation. Accordingly, this
rulemaking is consistent with Executive Order 13609 and PHMSA's
obligations under the Trade Agreement Act, as amended.
L. Executive Order 13211
Executive Order 13211 (``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'') \62\
requires Federal agencies to prepare a Statement of Energy Effects for
any ``significant energy action.'' Executive Order 13211 defines a
``significant energy action'' as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation that (1)(i) is
a significant regulatory action under Executive Order 12866 or any
successor order and (ii) is likely to have a significant adverse effect
on the supply, distribution, or use of energy (including a shortfall in
supply, price increases, and increased use of foreign supplies); or (2)
is designated by the Administrator of the Office of Information and
Regulatory Affairs (OIRA) as a significant energy action.
---------------------------------------------------------------------------
\62\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
Although this proposed rule is a significant action under Executive
Order 12866, PHMSA expects it to have an annual effect on the economy
of less than $100 million. Further, this action is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy in the United States. While the proposal to suspend the
transport of LNG by rail tank car has potential to impact the supply,
distribution, or use of energy in the United States, PHMSA does not
anticipate any near-term movement of LNG by rail tank cars. For
additional discussion of the anticipated economic impact of this
rulemaking, please see discussion of the cost analysis in accordance
with Executive Order 12866 (``Regulatory Planning and Review'').
List of Subjects in 49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Incorporation by reference, Labeling, Markings, Packaging and
containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR
part 172 as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY PLANS
0
1. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.
0
2. In Sec. 172.101, amend the Hazardous Materials Table by revising
the entry for ``Methane, refrigerated liquid (cryogenic liquid) or
Natural gas, refrigerated liquid (cryogenic liquid), with high methane
content)'' to read as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
[[Page 61744]]
Sec. 172.101--Hazardous Materials Table
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(8) (9) (10)
Hazardous ---------------------------------------------------------------------------------------------------------------
materials Hazard Special Packaging (Sec. 173.***) Quantity limitations (see Sec. Vessel stowage
Symbols descriptions and class or Identification PG Label codes provisions (Sec. ------------------------------------------------ Sec. 173.27 and 175.75) -------------------------------
proper shipping division numbers 172.102) --------------------------------
names Exceptions Non-bulk Bulk Passenger Cargo aircraft Location Other
aircraft/rail only
(1) (2)............... (3) (4)................ (5)........... (6)........... (7).............. (8A).......... (8B).......... (8C).......... (9A).......... (9B).......... (10A)......... (10B)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Methane, 2.1 UN1972............. .............. 2.1........... T75, TP5, 439, None.......... None.......... 318, 319...... Forbidden..... Forbidden..... D............. 40
refrigerated 440.
liquid (cryogenic
liquid) or
Natural gas,
refrigerated
liquid (cryogenic
liquid, with high
methane content).
* * * * * * *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61745]]
* * * * *
0
3. In Sec. 172.102, revise paragraph (c)(1) by adding special
provision 439 in numerical order to read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
439 UN1972 is not authorized for transportation by rail tank car
until issuance of either a final rule concluding the rulemaking action
proceeding under RIN 2137-AF54, or June 30, 2024, whichever occurs
first. For information and the status of RIN 2137-AF54, please refer to
the Office of Management and Budget's Office of Information and
Regulatory Affairs at www.reginfo.gov.
* * * * *
Issued in Washington, DC, on October 19, 2021, under authority
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2021-23132 Filed 11-5-21; 8:45 am]
BILLING CODE 4910-60-P
