SUPPLEMENTARY INFORMATION:

I. General Discussion

PHMSA is proposing to revise § 173.306 to provide an exception from the Hazardous Materials Regulations (HMR; Parts 171-180) for certain specification packaging requirements for large refrigerating machines containing certain flammable gases. The American Innovation and Manufacturing Act (AIM),^[1] signed into law in December 2020, required manufacturers to transition from higher Global Warming Potential (GWP) refrigerants, such as American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Group A1 gasses, currently classified as Division 2.2 non-flammable gases, to more environmentally friendly refrigerants with lower GWP. A majority of these ( printed page 28553) lower GWP refrigerants are flammable, but fall within the lower flammability category or may only propagate flame front at temperatures >23 C. All of the low GWP liquefied gases (refrigerants) described in this notice fall within GHS Category 1B and therefore ASHRAE Class 2L.

Currently, § 173.306(e)(1) and (2) provide an exception for refrigerating machines containing Group A1 refrigerant, as classified in ANSI/ASHRAE Standard 15, or not more than 50 pounds of refrigerant other than Group A1, from the specification packaging requirements of the HMR. Adopting DOT-SP 21379 into the HMR would expand the existing 5,000 lb. limit for Group A1 refrigerant, as classified in ANSI/ASHRAE Standard 15, to 5,000 lb. for low flammability gases meeting the criteria of the United Nations Globally Harmonized System (GHS) of Classification and Labelling of Chemicals (Seventh Revised Edition) Category 1B, or the equivalent found in American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) A2L Standard 34. Additional transport conditions such as vehicle type and markings are proposed for transporting refrigerating machines containing flammable gases. PHMSA does not expect the proposed revisions to have any adverse impact on safety.

II. Regulatory Analysis and Notices

A. Legal Authority

This proposed rule is published under the authority of the Secretary of Transportation set forth in the Federal Hazardous Materials Transportation laws (49 U.S.C. 5101 et seq.) and delegated to the PHMSA Administrator pursuant to 49 CFR 1.97.

B. Executive Orders 12866; Regulatory Planning and Review

Executive Order (E.O.) 12866 (“Regulatory Planning and Review”),^[2] as implemented by DOT Order 2100.6B (“Policies and Procedures for Rulemaking”), requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” DOT Order 2100.6B specifies that regulations should generally “not be issued unless their benefits are expected to exceed their costs.” In arriving at those conclusions, E.O. 12866 requires that agencies should consider “both quantifiable measures . . . and qualitative measures of costs and benefits that are difficult to quantify” and “maximize net benefits . . . unless a statute requires another regulatory approach.” E.O. 12866 also requires that “agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.” DOT Order 2100.6B directs that PHMSA and other Operating Administrations must generally choose the “least costly regulatory alternative that achieves the relevant objectives” unless required by law or compelling safety need.

E.O. 12866 and DOT Order 2100.6B also require that PHMSA submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President's Office of Management and Budget (OMB) for review. This proposed rule is a not significant regulatory action pursuant to E.O. 12866; it also has not designated this rule as a “major rule” as defined by the Congressional Review Act (5 U.S.C. 801 et seq.).

PHMSA has complied with the requirements in E.O. 12866 as implemented by DOT Order 2100.6B and made a preliminarily determination that this proposed rule would result in cost savings by reducing regulatory burdens and regulatory uncertainty for shippers of refrigerating machines by allowing for their transportation without the need for a special permit. PHMSA expects those cost savings would also result in reduced costs for the public to whom those entities generally transfer a portion of their compliance costs.

C. Executive Orders 14192 and 14219

This proposed rule, if finalized as proposed, is expected to be an E.O. 14192 deregulatory action.^[3] PHMSA seeks data that would be helpful to generate an estimate of the cost savings from this rule. PHMSA's initial estimates are that the total costs of the rule on the regulated community would be less than zero. Nor does this proposed rule does implicate any of the factors identified in section 2(a) of E.O. 14219 indicative of a regulation that is “unlawful . . . [or] that undermine[s] the national interest.” ^[4]

D. Energy-Related Executive Orders 13211, 14154, and 14156

The President has declared in E.O. 14156 (“Declaring a National Energy Emergency”) ^[5] a national emergency to address the United States's inadequate energy development production, transportation, refining, and generation capacity. Similarly, E.O. 14154 (“Unleashing American Energy”) ^[6] asserts a Federal policy to unleash American energy by ensuing access to abundant supplies of reliable, affordable energy from (inter alia) the removal of “undue burden[s]” on the identification, development, or use of domestic energy resources such as PHMSA-jurisdictional hazardous materials shippers and carrier. PHMSA preliminarily finds this proposed rule is consistent with each of E.O. 14156 and E.O. 14154 because it would not hinder or unduly burden the transportation or production of energy or energy-related products.

However, this proposed rule is not a “significant energy action” under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”),^[7] which requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” Because this proposed rule is not a significant action under E.O. 12866, it would not have a significant adverse effect on supply, distribution, or energy use; and OIRA has therefore not designated this proposed rule as a significant energy action.

E. Executive Order 13132: Federalism

PHMSA analyzed this proposed rule in accordance with the principles and criteria contained in E.O. 13132 (“Federalism”) ^[8] and the Presidential Memorandum (“Preemption”) published in the Federal Register on May 22, 2009.^[9] E.O. 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 Federal Hazardous Materials Transportation laws contain 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; ( printed page 28554)

(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 proposed rule addresses covered subject items listed in paragraph 1 above and would preempt state, local, and Tribal requirements not meeting the “substantively the same” standard. While the proposed rule may operate to preempt some State requirements, it would not impose 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 preemptive effect of the regulatory amendments in this proposed rule is limited to the minimum level necessary to achieve the objectives of the Federal Hazardous Materials Transportation Laws. Therefore, the consultation and funding requirements of E.O. 13132 do not apply.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires Federal agencies to conduct an Initial Regulatory Flexibility Analysis (IRFA) for a proposed rule subject to notice-and-comment rulemaking under the APA unless the agency head certifies that the proposed rule in the rulemaking would not have a significant economic impact on a substantial number of small entities. E.O. 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) ^[10] obliges agencies to establish procedures promoting compliance with the Regulatory Flexibility Act. DOT posts its implementing guidance on a dedicated web page.^[11] This proposed rule was developed in accordance with E.O. 13272 and DOT implementing guidance to ensure compliance with the Regulatory Flexibility Act. The proposed rule is expected to reduce burdens. Therefore, PHMSA certifies the proposed rule does not have a significant impact on a substantial number of small entities.

G. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act (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 proposed or direct final rule that includes a Federal mandate that may result in the expenditure by state, local, and Tribal governments, in the aggregate of $100 million or more (in 1996 dollars) in any given year, 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 rule does not impose unfunded mandates under UMRA because it does not result in costs of $100 million or more (in 1996 dollars) per year for either State, local, or Tribal governments, or to the private sector.

H. National Environmental Policy Act

The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.) requires that Federal agencies assess and consider the impact of major Federal actions on the human and natural environment.

PHMSA analyzed this proposed rule in accordance with NEPA and has preliminarily determined that the rulemaking would not adversely affect safety and therefore would not significantly affect the quality of the human and natural environment. The public is invited to comment on the impact of the proposed action.

I. Executive Order 13175

PHMSA analyzed this proposed rule according to the principles and criteria in E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”) ^[12] and DOT Order 5301.1A (“Department of Transportation Tribal Consultation Policies and Procedures”). E.O. 13175 requires agencies to assure meaningful and timely input from 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 or distribution of power between the Federal government and Tribes.

PHMSA assessed the impact of the proposed rule and determined that it would not significantly or uniquely affect Tribal communities or Indian Tribal governments. The rulemaking's regulatory amendments have a broad, national scope; therefore, this proposed rule would not significantly or uniquely affect Tribal communities, much less impose substantial compliance costs on Native American Tribal governments or mandate Tribal action. For these reasons, PHMSA has concluded that the funding and consultation requirements of E.O. 13175 and DOT Order 5301.1A do not apply.

J. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR 1320.8(d) requires that PHMSA provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. This rulemaking would not create, amend, or rescind any existing information collections. However, this rulemaking eliminates the need for persons to renew a special permit, resulting in a decrease in paperwork burden for special permit holders. PHMSA estimates the reduction in information collection burden as follows:

OMB Control No. 2137-0051: Rulemaking, Special Permits, and Preemption Requirements.

Decrease in Annual Number of Respondents: 10.

Decrease in Annual Responses: 10.

Decrease in Annual Burden Hours: 14.

Decrease in Annual Burden Cost: $0.

PHMSA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this NPRM. Address written comments to the Dockets Unit as identified in the ADDRESSES section of this NPRM. PHMSA must receive comments regarding information collection burdens prior to the close of the comment period identified in the DATES section of this NPRM. Notwithstanding any other provision of law, no person is required to respond to a collection of information unless such collection displays a valid Office of Management and Budget (OMB) control number.

Please direct your requests for a copy of this information collection to Steven Andrews, Office of Hazardous Materials Standards (PHH-12), Pipeline and ( printed page 28555) Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, 2nd Floor, Washington, DC 20590-0001.

K. Executive Order 13609 and International Trade Analysis

E.O. 13609 (“Promoting International Regulatory Cooperation”) ^[13] requires agencies 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 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.

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. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, 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 engages with international standards setting bodies to protect the safety of the American public. PHMSA has assessed the effects of the proposed rule and has determined that its regulatory amendments would not cause unnecessary obstacles to foreign trade.

L. Cybersecurity and Executive Order 14028

E.O. 14028 (“Improving the Nation's Cybersecurity”) ^[14] directed the Federal government to improve its efforts to identify, deter, and respond to “persistent and increasingly sophisticated malicious cyber campaigns.” PHMSA has considered the effects of the proposed rule and has determined that its regulatory amendments would not materially affect the cybersecurity risk profile for affected entities.

For the reasons set forth above, PHMSA proposes to amend 49 CFR Chapter I as follows:

1. The authority citation for part 171 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 4 (28 U.S.C. 2461 note; 49 CFR 1.81 and 1.97.

2. In § 171.7, add paragraph (d)(8) to read as follows:

3. The authority citation for part 173 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.

4. In 173.306:

a. Revise paragraphs (e)(1)(i) and (ii);

b. Add paragraph (e)(1)(ix);

c. Revise paragraph (e)(2)(i) introductory text; and

d. Add paragraphs (e)(3) and (e)(4)

To read as follows: