[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272
    F. Paperwork Reduction Act
    G. Unfunded Mandates Reform Act of 1995
    H. Environmental Assessment
    I. Executive Order 12898
    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \10\ Id. at 45005.
    \11\ Id. at 45008.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \12\ Docket No. PHMSA-2018-0025-0637.
---------------------------------------------------------------------------

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.).
---------------------------------------------------------------------------

    \13\ 65 FR 67249 (Nov. 9, 2000).
    \14\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \15\ 86 FR 7037 (Jan. 25, 2021).
---------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
            Know the risk                  Predict the risk         Reduce the risk        Prepare for the risk
----------------------------------------------------------------------------------------------------------------
 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.
----------------------------------------------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \19\ Id.
---------------------------------------------------------------------------

    The TRB committee plans to complete its work under Phase II in mid-
2022.\20\
---------------------------------------------------------------------------

    \20\ Id. at 13.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ 85 FR 23876.
    \23\ Docket No. DOT-OST-2021-0036-0025.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ See 85 FR 45006 (full-scale impact testing), 45012 (pool 
fire testing), and 45013 (quantitative risk assessment).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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 SP.
    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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