# Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail

- **operation:** document
- **citation:** 88 FR 60356
- **title:** Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2023-09-01
- **effective on:** 2023-10-31
- **summary:** PHMSA, in coordination with the Federal Railroad Administration (FRA), is amending the Hazardous Materials Regulations to suspend authorization of liquefied natural gas (LNG) transportation in rail tank cars pursuant to a final rule published on July 24, 2020, pending the earlier of either completion of a companion rulemaking evaluating potential modifications to requirements governing rail tank car transportation of LNG, or June 30, 2025.
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Federal Register, Volume 88 Issue 169 (Friday, September 1, 2023) [Federal Register Volume 88, Number 169 (Friday, September 1, 2023)] [Rules and Regulations] [Pages 60356-60375] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2023-18569] ======================================================================= ----------------------------------------------------------------------- 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: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA, in coordination with the Federal Railroad Administration (FRA), is amending the Hazardous Materials Regulations to suspend authorization of liquefied natural gas (LNG) transportation in rail tank cars pursuant to a final rule published on July 24, 2020, pending the earlier of either completion of a companion rulemaking evaluating potential modifications to requirements governing rail tank car transportation of LNG, or June 30, 2025. DATES: This final rule is effective on October 31, 2023. FOR FURTHER INFORMATION CONTACT: Alexander Wolcott, Transportation Specialist, Standards and Rulemaking Division, Office of Hazardous Materials Safety, (202) 366-8553, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Table of Contents I. Overview II. Background A. Historical Regulation of LNG by Rail B. A New Regulatory Approach and Enabling Research C. Another Hard Look Incorporating NASEM Recommendations and Ongoing Research Efforts D. East Palestine, OH Derailment III. Discussion of Comments to the NPRM and Adoption of a Temporary Suspension of the July 2020 Final Rule A. Comments Requesting an Immediate, Permanent Ban of LNG by Rail B. Comments Requesting the Removal of the June 30, 2024, Sunset Date [[Page 60357]] C. Comments of General Support for the NPRM D. Comments Alleging Chilling of Near-Term Demand for LNG Transportation by Rail Tank Car Pursuant to the July 2020 Final Rule E. Comments Contending That the LNG by Rail Improves Safety F. Comments Alleging Environmental Benefits From LNG by Rail G. Comments Alleging PHMSA Is Overstepping its Authority by Attempting To Regulate Oil and Gas Production H. Comments Alleging PHMSA Did Not Meet its Evidentiary Burden Under the APA for Temporary Suspension of the July 2020 Final Rule I. Comments Alleging That PHMSA's Proposal Will Have Miscellaneous Adverse Consequences for Regulated Entities, the U.S. Economy, and National Security J. Comments Beyond the Scope of This Rulemaking IV. Regulatory Analyses and Notices A. Statutory/Legal Authority B. Executive Orders 12866 and 14094, 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. Privacy Act J. Executive Order 13609 and International Trade Analysis K. Executive Order 13211 L. Cybersecurity and Executive Order 14028 I. Overview PHMSA, in coordination with FRA, is suspending recent amendments to the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) authorizing transportation of ``Methane, refrigerated liquid,'' commonly known as liquefied natural gas (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 Regulatory Identification Number (RIN) 2137- AF54, and determines whether any modifications are necessary. Transportation of LNG by rail tank car has not occurred since the July 24, 2020, publication of a final rule authorizing transportation of LNG in rail tank cars \1\ and there is considerable uncertainty regarding whether any would occur in the time it takes for PHMSA to consider potential modifications to existing, pertinent HMR requirements. However, this 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, 2025, whichever is earlier, thereby: (1) avoiding potential risks to public health and safety or environmental consequences (to include direct and indirect greenhouse gas (GHG) emissions) \2\ that are being evaluated in the companion rulemaking under RIN 2137-AF54; (2) allowing for the completion of ongoing testing and evaluation efforts undertaken in collaboration with FRA, as well as further consideration of the recommendations from external technical experts of the National Academy of Sciences, Engineering, and Medicine (NASEM); (3) assuring an opportunity for the potential development of any mitigation measures and operational controls for rail tank car transportation of LNG; (4) reducing the potential for economic burdens by ensuring that entities avoid ordering rail tank cars for transporting LNG compliant with current HMR requirements when the companion rulemaking may adopt alternative requirements; and (5) enabling potential opportunities for stakeholders and the public to be apprised of, and comment on, the results of ongoing testing and evaluation efforts. --------------------------------------------------------------------------- \1\ PHMSA final rule ``Hazardous Materials: Liquefied Natural Gas by Rail,'' 85 FR 44994 (Jul. 24, 2020) (July 2020 Final Rule). References within to ``this Final Rule'' or ``the Final Rule'' without qualification by reference to ``July 2020'' are meant to refer to this notice rather than its July 2020 Final Rule. \2\ PHMSA distinguishes between ``direct'' and ``indirect'' GHG emissions herein consistent with Council on Environmental Quality (CEQ) guidance. See CEQ, ``National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change,'' 88 FR 1196 (Jan. 9, 2023), which builds upon and updates CEQ's 2016 ``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,'' 81 FR 51866 (Aug. 8, 2016). --------------------------------------------------------------------------- Towards that end, PHMSA is adding a new special provision 439 that prohibits LNG transportation in rail tank cars until issuance of a final rule concluding the rulemaking proceeding under a companion rulemaking under RIN 2137-AF54, or June 30, 2025, whichever is earlier. Rail transport of LNG may still be permitted as authorized by the conditions of a PHMSA special permit (SP) under Sec. 107.105, or in a portable International Organization for Standardization (ISO) tank secured to a rail car pursuant to the conditions of an FRA approval under Sec. 174.63. PHMSA is also adopting a modest extension (until June 30, 2025, at the latest) of the sunset for the temporary suspension period identified in its November 2021 notice of proposed rulemaking in this proceeding,\3\ consistent with comments received on the NPRM and information obtained after its publication evincing greater uncertainty regarding the near-term commercial viability and potential environmental and safety risks associated with rail tank car transportation of LNG as authorized by the July 2020 Final Rule. --------------------------------------------------------------------------- \3\ PHMSA, ``Notice of Proposed Rulemaking--Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail'' 86 FR 61731 (Nov. 8, 2021) (NPRM). --------------------------------------------------------------------------- II. Background A. Historical Regulation of LNG by Rail LNG is a natural gas that has been cooled and converted to a liquid form for easier and more efficient transportation. In the United States, pipelines have historically delivered most natural gas, although other modes of transportation--such as rail and highway--have accounted for a relatively minor portion of natural gas transportation, typically in the form of LNG. Before PHMSA published the July 2020 Final Rule, rail transportation of LNG would have been limited to UN portable tank shipments (commonly referred to as ISO tank shipments) under an FRA approval and shipments made under SPs issued by PHMSA. This approach reflected the unique safety risks presented by rail transportation of large volumes of LNG and the historically low demand to transport LNG by rail. B. A New Regulatory Approach and Enabling Research Executive Order 13868 (``Promoting Energy Infrastructure and Economic Growth'') \4\ was signed in April 2019 and required PHMSA to treat LNG the same as other cryogenic liquids, authorize LNG to be transported in approved rail tank cars, and to finalize that rulemaking within 13 months.\5\ In response, PHMSA published a notice of proposed rulemaking titled ``Hazardous Materials: Liquefied Natural Gas by Rail'' \6\ in which it proposed to authorize the transportation of LNG in existing DOT-113C120W specification tank cars. The initial comment period for the NPRM closed on December 23, 2019, and was subsequently extended until January 13, 2020, following PHMSA's issuance to Energy Transport Solutions, LLC (ETS) in early December 2019 of [[Page 60358]] DOT-SP 20534 for the transportation of LNG by rail tank car.\7\ --------------------------------------------------------------------------- \4\ 84 FR 15495 (Apr. 15, 2019). \5\ The Secretary has delegated such rulemaking duties to the PHMSA Administrator. See 49 CFR 1.97. \6\ 84 FR 56977 (Oct. 24, 2019). \7\ 84 FR 70492 (Dec. 23, 2019) (DOT-SP 20534). --------------------------------------------------------------------------- DOT-SP 20534 allowed the transportation of LNG in existing DOT-113 tank cars from Wyalusing, PA, to Gibbstown, NJ, with no intermediate stops. This SP contained safety controls including a requirement to conduct remote sensing for detecting and reporting internal pressure, location, leakage, and (prior to the initial shipment of a tank car under the SP) a requirement to provide training to emergency response agencies that could be affected on the route. DOT-SP 20534 expired by its terms on November 30, 2021, after ETS had not filed an application for renewal until November 29, 2021. After careful consideration, PHMSA denied ETS' application for renewal on March 31, 2023.\8\ --------------------------------------------------------------------------- \8\ 88 FR 24844, 2846 (Apr. 24, 2023). PHMSA formally informed ETS of the denial of its renewal application by email on March 31, 2023, noting that (1) ETS's renewal application had made no attempt to address the concerns raised in the NPRM in this proceeding, (2) nearly three and a half years after issuance of DOT-SP 20534, ETS had yet to provide evidence that it had procured either new DOT- 113C120W9 tank cars or existing DOT-113C120W tank cars, and (3) the origin and destination facilities specified in DOT-SP 20534 had not been built and would need additional authorizations before construction could begin. ETS did not seek judicial review of the denial. --------------------------------------------------------------------------- In January 2020, PHMSA established a joint LNG Task Force with FRA to undertake testing and evaluation activity on the transportation of LNG that could inform potential future regulatory actions, as appropriate. In order to identify tasks within that effort, the LNG Task Force utilized a risk-based framework focused on knowing the risk, predicting the risk, reducing the risk, and preparing for the risk. Using that framework, the LNG Task Force identified and undertook 15 tasks to synthesize ongoing research and outreach activities. Those tasks included empirical review of international LNG transportation, safety and security route risk assessments, a re-evaluation of the costs and benefits of electronically controlled pneumatic (ECP) brakes, and the validation of emergency responders' opinions and needs. Although the LNG Task Force initially projected completion of its tasks by late 2021, much of its work was interrupted or delayed because of the coronavirus disease 2019 (COVID-19) public health emergency and because of subsequent modification of the scope of its activities. The ongoing efforts of the LNG Task Force are discussed further below. In parallel with its work under the LNG Task Force, and pursuant to a mandate in the ``Further Consolidated Appropriations Act, 2020'' (Pub. L. 116-94), PHMSA and FRA partnered with NASEM to conduct a study on the transportation of LNG in rail tank cars through a committee of the Transportation Research Board (TRB).\9\ The TRB commenced work in mid-July 2020. Roughly contemporaneous with the TRB beginning its work, PHMSA published the July 2020 Final Rule authorizing the shipment of LNG in new DOT-113C120W9 specification rail tank cars with enhanced outer tank requirements, subject to all applicable requirements and certain new operational controls. The July 2020 Final Rule became effective on August 24, 2020 and was swiftly followed by several petitions for judicial review. Specifically, six 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 the July 2020 Final Rule. All the petitioners asked the court to vacate the July 2020 Final Rule, alleging violations of the Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 510 2012;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 alleged 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''),\10\ 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'') \11\ and Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). The petitions were subsequently consolidated within a single proceeding in the U.S. Court of Appeals for the District of Columbia Circuit \12\ with the court granting PHMSA's motion to place the petitions in abeyance while PHMSA reviewed the July 2020 Final Rule. PHMSA submitted the latest status report in that proceeding in early June 2023. The Court lifted the abeyance on July 18, 2023.\13\ --------------------------------------------------------------------------- \9\ 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 May 15, 2023). \10\ 65 FR 67249 (Nov. 9, 2000). \11\ 59 FR 7629 (Feb. 16, 1994). \12\ Under docket no. 20-1317 (consolidated with docket nos. 20- 1318, 20-1431, & 21-1009). \13\ On May 17, 2023, Petitioners filed a Joint Motion to Lift Abeyance and requested the D.C. Circuit Court to direct the parties to submit a proposed briefing schedule. PHMSA, through the Department of Justice, filed a response opposing the motion to lift the abeyance on June 6, 2023. The Petitioners filed a reply on June 13, 2023. --------------------------------------------------------------------------- C. Another Hard Look Incorporating NASEM Recommendations and Ongoing Research Efforts Immediately after taking office, the Biden-Harris Administration issued Executive Order 13990 (``Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis'') \14\ on January 20, 2021. Executive Order 13990 required 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 Biden-Harris Administration policies to improve public health, protect the environment, prioritize environmental justice, and reduce GHG emissions. The Biden-Harris Administration identified the July 2020 Final Rule in a non-exclusive list \15\ of agency actions that would be reviewed in accordance with Executive Order 13990. Additionally, section 7 of Executive Order 13990 revoked Executive Order 13868, along with several other executive orders and executive actions, and directed 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. --------------------------------------------------------------------------- \14\ 86 FR 7037 (Jan. 25, 2021). \15\ 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 May 16, 2023). --------------------------------------------------------------------------- In response to Executive Order 13990, DOT published a notice on May 5, 2021, soliciting comment on potential candidates for review under Executive Order 13990 from among existing rules and other DOT actions.\16\ DOT received one comment pertaining to the July 2020 Final Rule from the Transportation Trades Department of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The commenter requested a reexamination of the July 2020 Final Rule as it believed that rulemaking ``neglected to include meaningful safety measures to adequately address the [[Page 60359]] inherent risks to this type of operation.'' \17\ --------------------------------------------------------------------------- \16\ 85 FR 23876 (May 5, 2021). \17\ Docket No. DOT-OST-2021-0036-0025. --------------------------------------------------------------------------- The TRB issued its Phase I Report on June 15, 2021,\18\ which reviewed the plans and progress of the LNG Task Force and evaluated the relevance, completeness, and quality of those efforts. 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.'' However, the TRB noted that the COVID-19 public health emergency resulted in delays in initiation and completion of several tasks. The TRB 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 the transportation of LNG in rail tank cars. Specifically, it expressed concern on the incomplete status of tasks pertaining to full-scale impact testing, portable tank pool fire testing, worst-case scenario analysis, and quantitative risk assessment. The Phase I Report made several recommendations including proposing that PHMSA and FRA make changes to the planned portable fire tank testing, assess the potential for cryogenic damage cascading to adjacent tanks, enhance the modeling for worst-case scenarios, evaluate explosion hazards from a spill of LNG resulting in vapor dispersion in an environment with confined or congested spaces, and add loading and unloading operations to the risk assessment. PHMSA subsequently modified its LNG Task Force testing activity in response to the Phase I Report recommendations by, among other things, undertaking each of the following: enhanced impact testing directed toward evaluating post- weld, heat-treated seams from a DOT-113C120W9-specification tank car; enhanced worst-case scenario modeling; performing an enhanced quantitative risk assessment; modification of ISO tank pool fire testing protocols to better simulate release conditions; and enhanced train dynamic simulations to better capture effects from use of distributed power and buffer car placement within a train consist transporting LNG. --------------------------------------------------------------------------- \18\ 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 . --------------------------------------------------------------------------- On November 8, 2021, PHMSA published the NPRM in this rulemaking proceeding. In that NPRM, PHMSA reviewed pertinent economic data, TRB's Phase I Report recommendations, and the status of ongoing work of the LNG Task Force en route to proposing a temporary suspension of the transportation of LNG by rail tank car until the earlier of either June 30, 2024, or the publication of a companion rulemaking under RIN 2137- AF54. PHMSA's proposal reflected its understanding that uncertainties acknowledged in the July 2020 Final Rule--e.g., regarding the near-term commercial viability of rail tank car transportation of LNG, as well as potential safety and environmental benefits and risks of rail tank car transportation--had only increased since issuance, thereby ``casti[ng] doubt on the continued validity of the balance between potential benefits and public safety and environmental risks underpinning the [July 2020 Final Rule].'' \19\ PHMSA therefore proposed a temporary suspension of the July 2020 Final Rule to allow time for PHMSA to review the results of the (then-forthcoming) TRB Phase II Report, complete ongoing LNG Task Force testing and evaluation activities, and (based on the results of those efforts) modify HMR requirements as appropriate within the companion rulemaking under RIN2137-AF54. The comment period closed on December 23, 2021. PHMSA received over 10,500 comments from private individuals, environmental groups, government officials, the rail industry, and other stakeholders. See Section III for further details. --------------------------------------------------------------------------- \19\ 86 FR at 61735-36. --------------------------------------------------------------------------- The TRB issued its Phase II Report on September 9, 2022.\20\ The Phase II Report involved a more comprehensive assessment than that undertaken in connection with the Phase I Report regarding topics relevant to the safe movement of LNG by rail tank car pursuant to both SPs and the HMR following issuance of the July 2020 Final Rule. Specifically, it examined bulk shipments of LNG by other modes of transportation (including vessel and highway) to identify the basic principles used in those modes for safety assurance. It also examined the effectiveness of regulatory requirements and industry practices (e.g., pertaining to speed and routing, as well as other operational controls applicable to high-hazard flammable trains) intended to assure the safe transportation of bulk rail shipments of other hazardous materials. --------------------------------------------------------------------------- \20\ NASEM, ``Preparing for LNG by Rail Tank Car: A Readiness Review'' (Sep. 2022) (Phase II Report), https://www.nap.edu/read/26719/chapter/1 . --------------------------------------------------------------------------- The Phase II Report also made recommendations on necessary near- and long-term actions to improve the understanding of the risks associated with transporting LNG by rail tank car, mitigate those risks, and prevent and prepare for potential incidents. The first recommendation suggested launching an LNG safety assurance initiative before LNG tank cars are put in service. The safety assurance initiative would actively monitor initial plans for and early patterns of LNG traffic activity, including the locations and routes of shipments, the number and configuration of tank cars in trains, and reports of incidents involving a tank car or train carrying LNG. The second and final recommendation suggested that PHMSA and FRA should review the DOT-113C120W9 tank car specification to ensure that it adequately accounts for the cryogenic and thermal properties of LNG that could contribute to a tank release in the event of a rail incident and potential cascading impacts therefrom. The TRB's elaboration on its second recommendation emphasized the value in assessing each of the following: the capacity of the pressure relief devices on the new DOT- 113C120W9-specification tank cars to vent a sufficient amount of LNG when the tank car is engulfed in an LNG fire in derailment conditions, including a rollover event; the effects of adding more and different types of insulation in the annular space to ensure sufficient performance of the multilayer insulation system when the tank car is exposed to heat flux and direct flame impingement from an LNG fire; and the potential for the outer tank of the DOT-113C120W9 tank car to experience cryogenic brittle failure and loss of vacuum insulation when exposed to an LNG pool fire. PHMSA subsequently adjusted its LNG Task Force testing activity in response to the Phase II Report recommendations by modifying its ongoing worst-case analysis modeling and quantitative risk assessment efforts to address the DOT-113C120W9- specification design element concerns raised by the TRB. In light of the new information received from the TRB reports and PHMSA's completed research and ongoing tests, PHMSA suspends the regulations adopted in the July 2020 Final Rule to allow PHMSA sufficient time to complete its analysis to reconsider the determinations made in the July 2020 Final Rule. The LNG Task Force has completed most of its testing and evaluation activities (as modified in response to the TRB Phases I and II Reports). Of those remaining activities, PHMSA expects to [[Page 60360]] complete its enhanced quantitative risk analysis and worse case analysis modeling no later than Q3-2023. This analysis has taken longer than expected because it was modified first to address concerns in the TRB Phase I Report in June 2021 and then again in response to the TRB Phase II Report issued in September 2022. PHMSA is in the process of contracting for performance of each of the following remaining tasks: (1) enhanced impact testing directed toward evaluating post-weld, heat- treated seams from a DOT-113C120W9-specification tank car in response to the TRB Phase I Report; and (2) enhanced train dynamic simulations to better capture effects from use of distributed power and buffer car placement within a train consist transporting LNG in response to the TRB Phase I Report. D. East Palestine, OH Derailment On February 3, 2023, a mixed-consist freight train operated by Norfolk Southern Railway--comprised of two head-end locomotives, 149 railcars, and 1 distributed power locomotive--derailed in East Palestine, Ohio. Thirty-eight railcars derailed, including 11 tank cars carrying combustible liquid and flammable gas hazardous materials, though none of the railcars were carrying LNG. The derailment resulted in a fire impacting the derailed tank cars and damaging 12 additional railcars that had not derailed. Included in the derailment and fire were five DOT-105 specification tank cars containing vinyl chloride--a hazardous material classified as a Division 2.1 flammable gas. These DOT-105 specification tank cars were not punctured in the derailment. PHMSA is working with the National Transportation Safety Board to learn all it can from this incident and determine whether the lessons learned should inform rail transportation of other hazardous commodities such as LNG. III. Discussion of Comments to the NPRM and Adoption of a Temporary Suspension of the July 2020 Final Rule The comment period for the NPRM in this proceeding closed on December 23, 2021. PHMSA received over 10,500 sets of comments to the rulemaking docket through and after the formal comment period; consistent with Sec. 106.70, PHMSA considers late-filed comments to the extent possible. PHMSA considered all comments received in the development of this Final Rule. The comments submitted to this docket may be accessed via http://www.regulations.gov . The following table categorizes the commenters. Please note that some commentors submitted multiple comments. ------------------------------------------------------------------------ Description and examples Commenter Count of category ------------------------------------------------------------------------ Non-Government Organizations....... 18 Environmental Groups; Emergency Response Organizations; Other. Government Officials............... 8 Local; State; Federal; Tribal. Private Individuals................ 10,126 .......................... Industry Stakeholders.............. 3 Trade Associations; Shippers. ------------------------------------------------------------------------ Table of Commenters to the NPRM ------------------------------------------------------------------------ Comments received could generally be summarized as advancing one or more of the following positions: Comments requesting an immediate, permanent ban of LNG by rail; Comments requesting the removal of the June 30, 2024, sunset date; Comments of general support for the NPRM; Comments alleging chilling of near-term demand for LNG transportation by rail tank car pursuant to the July 2020 Final Rule; Comments alleging that LNG by rail improves safety; Comments alleging environmental benefits from LNG by rail; Comments alleging PHMSA is overstepping its authority by attempting to regulate oil and gas production; Comments alleging PHMSA did not meet its evidentiary burden under the APA for temporary suspension of the July 2020 Final Rule; Comments alleging that PHMSA's proposal will have miscellaneous adverse consequences for regulated entities, the U.S. economy, and national security; and Comments beyond the scope of this rulemaking. Based on the comments received in response to the NPRM, the recommendations in the TRB Phases I and II Reports, the ongoing LNG Task Force testing and evaluation activities, and pertinent information regarding the near-term commercial prospects for rail tank car transportation of LNG, PHMSA has concluded that a temporary suspension of the July 2020 Final Rule's authorization for rail tank car transportation of LNG in new DOT-113C120W9-specification tank cars is appropriate. PHMSA finds that, consistent with the analysis in the NPRM, these resources indicate that the uncertainties described in the July 2020 Final Rule (e.g., regarding whether, when and how LNG by rail tank car transportation will occur, and the safety and environmental risks and benefits of such transportation) have only increased since its issuance, calling into question the balance between potential benefits and public safety and environmental risks PHMSA understood itself to be striking in that rulemaking. In contrast (and as explained at greater length below in this Section III responding to comments received on the NPRM) a temporary suspension will ensure each of the following: (1) avoidance of potential safety risks to public and worker safety and the environment while PHMSA completes its companion rulemaking under RIN 2137-AF54; (2) HMR authorization of rail tank car transportation of LNG pursuant to that companion rulemaking reflects the best science by accounting for ongoing LNG Task Force testing and evaluation activities as informed by the TRB Phases I and II Report recommendations; (3) consideration of additional public comment from diverse stakeholders in that companion proceeding; and (4) minimizing the potential for economic burdens by ensuring that entities avoid ordering rail tank cars for LNG service compliant with the requirements of the July 2020 Final Rule when the companion rulemaking may alter those requirements.\21\ See 86 FR at 61732, 67135-36. As noted in the NPRM, stakeholders seeking to transport LNG by rail during the suspension period may seek (on an ad hoc basis) either SPs from PHMSA or approvals from FRA. --------------------------------------------------------------------------- \21\ The temporary suspension provided for in this Final Rule applies only to rail transportation of LNG tank cars--it does not prohibit use of the new DOT-113C120W9 tank car in connection with other hazardous, cryogenic liquids. --------------------------------------------------------------------------- Lastly, the Final Rule extends the duration of the temporary suspension an [[Page 60361]] additional year (until June 30, 2025, at the latest) beyond the sunset date (June 30, 2024) proposed in the NPRM. This extension--which is consistent with comments received from stakeholders \22\ on the NPRM discussed in section III.B below--is warranted due to delays in completion of the LNG Task Force activity (discussed in section III.C below) that will inform the companion rulemaking under RIN 2137-AF54. Also, economic information discussed in section III.D below shows that the commercial prospects for rail tank car transportation pursuant to the July 2020 Final Rule have become even more uncertain than they were when the NPRM issued in November 2021. --------------------------------------------------------------------------- \22\ PHMSA received no comments that specifically requested the June 2024 sunset date for the suspension; commenters either sought no suspension or a permanent suspension. --------------------------------------------------------------------------- A. Comments Requesting an Immediate, Permanent Ban of LNG by Rail PHMSA received numerous comments requesting the immediate, permanent ban of all LNG by rail in lieu of the temporary suspension as proposed in the NPRM. Many of these comments were part of write-in campaigns comprising approximately 6,650 comments in an initial campaign during the formal comment period, and an additional 3,500 comments in a second campaign coordinated by the National Resource Defense Council (NRDC) after the East Palestine derailment in early 2023 (NRDC Coordinated Write-in Campaign Comments). Other comments were stand-alone comments submitted by non-governmental organizations (e.g., environmental advocacy organizations); Federal, State, and local government officials; and private citizens. Many of these comments attributed the need for an immediate, permanent ban on the risk to public safety and the environment from LNG's material properties--specifically, pointing to its flammability, explosive potential, and GHG contributions--in the event of a release. Of particular concern for many commenters were the risks of a boiling liquid expanding vapor explosions (BLEVEs) or asphyxiation in the event of a release of LNG during an accident or incident. Some commenters elaborated on their safety concerns by highlighting the potential limitations (e.g., of personnel and equipment resources and training) of emergency response personnel to respond to an incident involving rail transportation of LNG in their jurisdictions. Other commenters alleged that the new DOT-113C120W9 tank car specification was inadequate or untested for rail transportation of LNG and that a more robust safety history--coupled with more robust, mandatory operational controls (such as limits on train length, tank car weight, and maximum allowable speed) than required in the July 2020 Final Rule--would be necessary to ensure safety. Other commenters cited safety and environmental justice concerns for those who live along rail lines that would carry LNG, stating that ``bomb trains'' would threaten the safety of those who live in these communities--many of which communities may be densely-populated or historically disadvantaged. Other commenters called for an immediate ban of LNG transportation by rail given methane's status as a potent GHG and the Biden-Harris Administration's commitments to reducing GHG emissions. And commenters from the NRDC campaign called for a ban on LNG by rail in the ``in the wake of the devastating train derailment in East Palestine, Ohio.'' \23\ Lastly, some commenters contended that if the ``. . . rule was already bad enough to reconsider, it should be repealed outright.'' \24\ --------------------------------------------------------------------------- \23\ NRDC Coordinated Write-in Campaign Comments. \24\ Beyond Extreme Energy with 198 methods Comment at 1. --------------------------------------------------------------------------- PHMSA Response PHMSA acknowledges the concerns raised by these stakeholders and agrees that any risks related to the transportation of LNG by rail should be examined closely and properly mitigated to ensure safety for the public and the environment. Accordingly PHMSA is suspending LNG transportation by rail tank car pursuant to the July 2020 Final Rule until the conclusion of the companion rulemaking under RIN 2137-AF54 or June 30, 2025, whichever is earlier. This will provide PHMSA an opportunity to conduct a thorough evaluation of the HMR's regulatory framework for rail transportation of LNG based on the information received from the LNG Task Force testing and evaluation efforts, TRB Phases I and II Reports, and stakeholders' written comments. PHMSA also encourages those stakeholders to consider submitting comments in response to any future notice of proposed rulemaking issued by PHMSA in the companion rulemaking under RIN 2137-AF54. B. Comments Requesting the Removal of the June 30, 2024, Sunset Date PHMSA received comments requesting removal of the sunset date of June 30, 2024, proposed in the NPRM so that the proposed suspension would be in effect until the companion rulemaking under RIN 2137-AF54 has concluded. Delaware Riverkeeper Network (DRN) commented that in the NPRM, PHMSA justified the sunset date by indicating that the TRB Phase II Report was expected in mid-2022 and that PHMSA needed time to incorporate those results and publish a rule. DRN argued that ``this rationale begs the question--why not wait until PHMSA actually incorporates the results of the Phase II Report and concludes the rulemaking process?'' They further stated that ``the unpredictability of the COVID-19 pandemic indicates that timelines are not as predictable as they were pre-2019.'' \25\ --------------------------------------------------------------------------- \25\ DRN Comment at 2. --------------------------------------------------------------------------- The International Association of Fire Fighters (IAFF) suggested an objective-based approach whereby the suspension would only be lifted if certain criteria have been met. IAFF further urged ``. . . the FRA to establish specific criteria to be attained prior to the lifting of the proposed suspension.'' \26\ Similarly, comments from the AFL-CIO and others supported suspending LNG by rail tank car until LNG Task Force testing and evaluation efforts are complete, stating they ``. . . support PHMSA's suspension of the implementation of the rule until a time when the agencies have completed a more thorough safety review.'' \27\ Other commenters proposed longer suspension periods than had been proposed in the NPRM. --------------------------------------------------------------------------- \26\ IAFF Comment at 2. \27\ TDD Comment at 1. --------------------------------------------------------------------------- PHMSA Response PHMSA in the NPRM speci
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