Quiero saber acerca de...

61738

Federal Register / Vol. 86, No. 213 / Monday, November 8, 2021 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1

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.
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. 5125b that preempts State, local, and Tribal requirements on certain covered subjects, unless the nonfederal 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 46 64
47 74

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

VerDate Sep<11>2014

17:34 Nov 05, 2021

Jkt 256001

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-bycase 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-oftrain 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
PO 00000

Frm 00021

Fmt 4702

Sfmt 4702

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-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 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, 48 67

E:FRFM08NOP1.SGM

FR 53461 Aug. 16, 2002.

08NOP1