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Federal Register / Vol. 86, No. 151 / Tuesday, August 10, 2021 / Proposed Rules The safety and environmental benefits of the proposed rule have not been quantified. However, PHMSA expects the proposed amendments would help to improve public safety and reduce the risk of environmental harm by maintaining consistency between these international regulations and the HMR.
Harmonization of the HMR with international consensus standards as proposed could reduce delays and interruptions of hazardous materials during transportation, thereby lowering GHG emissions and safety risks to communities including minority, lowincome, underserved, and other disadvantaged populations and communities in the vicinity of interim storage sites and transportation arteries and hubs.

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C. Executive Order 13132
PHMSA analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 Federalism 34 and the Presidential memorandum Preemption that was published in the Federal Register on May 22, 2009.35
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.
The rulemaking may preempt State and 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 hazardous materials transportation law contains an express preemption provision at 49 U.S.C. 5125b 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 34 64
35 74

FR 43255 Aug. 10, 1999.
FR 24693 May 22, 2009.

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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 proposed rule addresses covered subject items 1, 2, 3, 4, and 5
above and would preempt State, local, and Tribal requirements not meeting the substantively the same standard. In this instance, the preemptive effect of the proposed rule is limited to the minimum level necessary to achieve the objectives of the hazardous materials transportation law under which the final rule is promulgated. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
PHMSA analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13175 Consultation and Coordination with Indian Tribal Governments 36
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.
PHMSA assessed the impact of the rulemaking and determined that it would not significantly or uniquely affect Tribal communities or Native American Tribal governments. The changes to the HMR proposed in this NPRM are facially neutral and would have broad, national scope; PHMSA, therefore, expects this rulemaking not to significantly or uniquely affect Tribal communities, much less impose substantial compliance costs on Native American Tribal governments or mandate Tribal action. And because PHMSA expects the rulemaking would not adversely affect the safe transportation of hazardous materials 36 65

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generally, PHMSA does not expect it would entail disproportionately high adverse risks for 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 review proposed regulations to assess their impact on small entities, unless the agency head certifies that a proposed rulemaking will not have a significant economic impact on a substantial number of small entities including small businesses, not-forprofit 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 37
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, and small organizations. The DOT posts its implementing guidance on a dedicated web page.38
This proposed rulemaking has been developed in accordance with Executive Order 13272 and with DOTs 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. This proposed rule facilitates the transportation of hazardous materials in international commerce by providing consistency with international standards. It applies to offerors and carriers of hazardous materials, some of whom are small entities, such as chemical manufacturers, users, and suppliers, 37 67

FR 53461 Aug. 16, 2002.
Rulemaking Requirements Related to Small Entities, https www.transportation.gov/
regulations/rulemaking-requirements-concerningsmall-entities last accessed June 17, 2021.
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