60356 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

high-cost areas for which it is requesting 

to offer the high-cost area benefit. If the 

Administrator finds the particularized 

economic hardship showing is satisfied 

in accordance with the Commission’s 

rules and orders, and any guidance from 

the Wireline Competition Bureau and 

the Office of Economics and Analytics, 

then the Administrator will approve the 

request and notify the participating 

provider. Otherwise, the Administrator 

will deny the request and provide the 

participating provider a written 

explanation of the basis for the denial. 

(1) The Administrator will review 

applications within a timeline to be 

determined by the Bureau. 

(2) Providers may appeal the 

Administrator’s determination as set 

forth in subpart I in this part of the 

Commission’s rules. 

(3) Providers may only submit claims 

for up to the $30.00 standard benefit 

amount while an appeal of an 

Administrator’s determination is 

underway. Following a successful 

appeal, providers approved to offer the 

high-cost area benefit may submit 

revised claims for eligible households in 

the approved high-cost areas as set forth 

in § 54.1808. The provider many submit 

revised claims for up to $75.00 only 

from the start of the approval period 

indicated in the appeal determination 

letter. 

(d) Annual renewal process. A 

participating provider that has been 

approved to provide the high-cost area 

benefit must request approval annually 

thereafter to continue to provide the 

enhanced benefit to eligible households 

in a subsequent year. The participating 

provider will need to demonstrate 

particularized economic hardship in the 

renewal submission, through the 

documentation specified by the 

Wireline Competition Bureau. The 

deadline for submitting the renewal 

request shall be determined by the 

Wireline Competition Bureau. 

(e) Notice to eligible households. (1) 

Participating providers approved to 

offer the high-cost area benefit shall 

provide Affordable Connectivity 

Program subscribers written notice 

when the provider begins applying the 

high-cost area benefit to the subscriber’s 

bill. The written notice must state: 

(i) That the subscriber is receiving a 

high-cost area benefit and the difference 

between the standard benefit amount 

and the enhanced high-cost benefit 

being applied to the subscriber’s 

supported service; 

(ii) That the receipt of the high-cost 

area benefit is contingent on the 

provider’s annual continued eligibility 

to offer the enhanced high-cost area 

benefit; 

(iii) That the provider is required to 

provide the subscriber advance notice if 

the provider is no longer deemed 

eligible to offer the high-cost area 

benefit; and 

(iv) That the provider is required to 

provide the subscriber advance notice of 

any changes to the subscriber’s 

supported service rate or service plan 

stemming from any loss of the 

provider’s eligibility to offer the highcost area benefit. 

(2) If a participating provider fails to 

timely submit the renewal submission 

by the deadline or no longer qualifies to 

offer the high-cost area benefit based on 

its annual resubmission, then the 

participating provider shall provide 

written notice to its Affordable 

Connectivity Program customers 

receiving the high-cost area benefit at 

least 30 days and at least 15 days before 

the expiration of its approval to offer the 

high-cost area benefit. Such subscriber 

notices shall include: 

(i) A statement that the provider will 

no longer be offering the high-cost area 

benefit in the relevant high-cost area; 

(ii) The effective date of the end of the 

high-cost area benefit; 

(iii) A statement that upon the 

effective date of the loss of the high-cost 

area benefit, the Affordable Connectivity 

Program supported service purchased 

by the household will no longer be 

discounted at the higher subsidy 

amount; and 

(iv) The amount the household will be 

expected to pay if it continues 

purchasing the service from the 

provider after the high-cost area benefit 

is no longer available. 

(3) If a participating provider is no 

longer authorized to offer the high-cost 

area benefit, the provider may transition 

an eligible household to a lower-priced 

ACP service plan once the high-cost 

area benefit is no longer available, upon 

advance notice to the household and an 

opportunity for the household to opt out 

of the change and remain on its current 

service plan or select another service 

plan. Participating providers must 

include the advance transition notice in 

the required written notice about the 

end of the provider’s approval to offer 

the high-cost area benefit. The advanced 

notice must: 

(i) Provide details about the new plan 

and monthly price; 

(ii) State that the subscriber may 

remain on its current plan or choose 

another plan; 

(iii) Provide instructions on how the 

subscriber can opt out of the transition 

or change its service plan; 

(iv) Provide the deadline for the 

subscriber to notify the provider that the 

subscriber would like to remain on its 

current plan or choose another plan. 

[FR Doc. 2023–18621 Filed 8–31–23; 8:45 am] 

BILLING CODE 6712–01–P 

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 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60357 

1PHMSA 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. 

2PHMSA 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). 

3PHMSA, ‘‘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). 

4 84 FR 15495 (Apr. 15, 2019). 

5The Secretary has delegated such rulemaking 

duties to the PHMSA Administrator. See 49 CFR 

1.97. 

6 84 FR 56977 (Oct. 24, 2019). 

C. Comments of General Support for the 

NPRM 

D. Comments Alleging Chilling of NearTerm 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. 

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 

§ 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 

§ 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. 

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 


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7 84 FR 70492 (Dec. 23, 2019) (DOT–SP 20534). 

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. 

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/safetransportation-of-liquefied-natural-gas-by-railroadtank-car (last visited May 15, 2023). 

10 65 FR 67249 (Nov. 9, 2000). 

11 59 FR 7629 (Feb. 16, 1994). 

12Under docket no. 20–1317 (consolidated with 

docket nos. 20–1318, 20–1431, & 21–1009). 

13On 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. 

14 86 FR 7037 (Jan. 25, 2021). 

15U.S. White House, ‘‘Fact Sheet: List of Agency 

Actions for Review,’’ https://www.whitehouse.gov/ 

briefing-room/statements-releases/2021/01/20/factsheet-list-of-agency-actions-for-review/ (last visited 

May 16, 2023). 

16 85 FR 23876 (May 5, 2021). 

DOT–SP 20534 for the transportation of 

LNG by rail tank car.7

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

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

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 BidenHarris 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 nonexclusive 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. 

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 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60359 

17 Docket No. DOT–OST–2021–0036–0025. 18NASEM, ‘‘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. 

19 86 FR at 61735–36. 

20NASEM, ‘‘Preparing for LNG by Rail Tank Car: 

A Readiness Review’’ (Sep. 2022) (Phase II Report), 

https://www.nap.edu/read/26719/chapter/1. 

inherent risks to this type of 

operation.’’ 17

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 worstcase 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. 

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 (thenforthcoming) 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. 

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 highhazard flammable trains) intended to 

assure the safe transportation of bulk 

rail shipments of other hazardous 

materials. 

The Phase II Report also made 

recommendations on necessary nearand 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 


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21The 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. 

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, heattreated 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. Thirtyeight 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 § 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. 

Commenter Count Description and examples 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 nearterm 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. 

Lastly, the Final Rule extends the 

duration of the temporary suspension an 


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22PHMSA received no comments that specifically 

requested the June 2024 sunset date for the 

suspension; commenters either sought no 

suspension or a permanent suspension. 

23NRDC Coordinated Write-in Campaign 

Comments. 

24Beyond Extreme Energy with 198 methods 

Comment at 1. 

25 DRN Comment at 2. 

26 IAFF Comment at 2. 

27TDD Comment at 1. 

28 86 FR at 61737. 

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. 

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 denselypopulated 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

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

The International Association of Fire 

Fighters (IAFF) suggested an objectivebased 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. 

PHMSA Response 

PHMSA in the NPRM specifically 

sought comments on the proposed 

suspension date, including the sunset 

date, and whether PHMSA should 

modify the proposed expiration of the 

suspension period.28 PHMSA 

appreciates and acknowledges the 

points made by commenters and, 

consistent with the discussion in the 

introduction to section III above, is 

extending the sunset date for the 

suspension period an additional year 

such that rail tank car transportation of 

LNG pursuant to the July 2020 Final 

Rule will be suspended until the earlier 

of either (1) a final rule concluding the 

companion rulemaking under RIN 

2137–AF54, or (2) June 30, 2025. This 

one-year extension beyond the sunset 

date (June 30, 2024) proposed in the 

NPRM will give PHMSA adequate time 

to complete LNG Task Force testing and 

evaluation activities (and delays in 


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29CSX Comments at 1; PHMSA, Doc. No. 

PHMSA–2021–0058–7064, ‘‘Summary of CSX 

Listening Session’’ (Feb. 17, 2022); Landry, et al. 

Comments at 1, 4. 

30Applications for a Special Permit submitted 

under § 107.105 must demonstrate that such Special 

Permit will achieve at least an equivalent level of 

safety as to what is provided under the HMR, and 

in particular, should address any outstanding safety 

questions or concerns including those raised in this 

rulemaking. 31 86 FR at 61735–36. 

receipt of the TRB Phases I and II 

Reports) that had been delayed because 

of the COVID–19 public health 

emergency and additional scoping and 

contracting issues, and thereafter 

integrate those results into each of a 

notice of proposed rulemaking and final 

rulemaking in the companion 

rulemaking under RIN 2137–AF54. 

C. Comments of General Support for the 

NPRM 

PHMSA received numerous 

comments in support of the NPRM’s 

proposed suspension, including 

comments from Governor Jay Inslee of 

Washington State; the Attorneys General 

of Maryland, New York, Connecticut, 

Delaware, Illinois, Massachusetts, 

Michigan, Minnesota, New Jersey, 

Oregon, Pennsylvania, Rhode Island, 

Vermont, Washington, and the District 

of Columbia; and the Puyallup Tribe of 

Indians. Many commenters who 

supported the temporary suspension 

proposed in the NPRM also urged 

PHMSA to subsequently ban LNG in the 

companion rulemaking under RIN 

2137–AF54. Commenters supporting the 

NPRM’s proposed suspension of the 

July 2020 Final Rule generally 

articulated the same safety and 

environmental concerns as those calling 

for an immediate, permanent bans of 

rail tank car transportation of LNG 

discussed in section III.A above. 

PHMSA Response 

PHMSA acknowledges the thousands 

of comments submitted in support of 

the NPRM. Although some of those 

commenters also urged PHMSA to 

permanently ban rail tank car 

transportation of LNG in the companion 

rulemaking under RIN 2137–AF54, 

PHMSA submits that it will need to 

complete (and review the results of) the 

LNG Task Force testing and evaluation 

efforts before it will be in a position to 

speak to the contents of a forthcoming 

notice of proposed rulemaking in that 

companion rulemaking. PHMSA 

encourages 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. 

D. Comments Alleging Chilling of NearTerm Demand for LNG Transportation 

by Rail Tank Car Pursuant to the July 

2020 Final Rule 

PHMSA received several comments 29

on the NPRM’s observations of 

increased uncertainty regarding whether 

there will be near-term demand for rail 

tank car transportation of LNG pursuant 

to the July 2020 Final Rule. Specifically, 

CSX noted in its comments that it had 

several projects in development to 

transport LNG by rail in or before 2024, 

and that ‘‘[t]he continued investment in 

and pursuit of those projects, which 

require design, permitting, and 

construction with long lead times, 

would be impaired if the July 2020 Final 

Rule were suspended indefinitely, 

delaying them potentially for years and 

harming CSX’s reliance interests and 

imposing costs and lost business 

opportunities on CSX and its partners’’ 

(emphasis added). CSX subsequently 

met with PHMSA on February 17, 2022, 

and elaborated on their written 

comments by noting that those projects 

had been shelved and that the issuance 

of the NPRM was the occasion for those 

decisions. The Attorney General for the 

State of Louisiana, Jeff Landry, joined by 

State Attorneys General from Alabama, 

Alaska, Arizona, Arkansas, Florida, 

Georgia, Idaho, Indiana, Kentucky, 

Mississippi, Missouri, Montana, 

Nebraska, New Hampshire, Ohio, South 

Carolina, South Dakota, Texas, Utah, 

Virginia, West Virginia, and Wyoming 

(Landry, et. al.) similarly contend that 

‘‘the proposed rule itself is the cause of 

the regulatory uncertainty of which it 

complains’’ (emphasis in original) in 

that it ‘‘discourages companies from 

making any capital investment in LNG 

by rail, specifically the DOT– 

113C120W9 specification tank cars that 

the 2020 Rule authorized.’’ 

PHMSA Response 

PHMSA finds these comments 

unconvincing statements of the nearterm commercial viability of rail tank 

car transportation of LNG pursuant to 

the July 2020 Final Rule. The 

suspension proposed in the NPRM and 

adopted in this Final Rule is not 

‘‘indefinite’’ as characterized by CSX; 

rather, it is time-limited to the earlier of 

a date certain (June 2025) or to the 

completion of the milestone of issuing 

a final rule in the companion 

rulemaking under RIN 2137–AF54. Even 

if the NPRM affected one or more of 

CSX’s nascent projects exploring rail 

tank car transportation of LNG, CSX or 

other entities could have applied for, 

and may still apply for, an alternative 

regulatory vehicle (e.g., an SP under 

§ 107.105,30 or an FRA approval for rail 

transportation via portable tank) to 

allow work to proceed on those projects 

during the suspension period. PHMSA 

is unaware of CSX, its collaborators in 

those projects, or any other entities 

having pursued alternatives. Indeed, in 

its written comments and again during 

its February 17, 2022, meeting with 

PHMSA, CSX personnel acknowledged 

that the choice of package (i.e., the 

particular DOT-specification rail tank 

car or ISO tank) employed in rail 

transportation of LNG is merely one 

decision within a multi-step, multi-year 

project development and execution 

chain involving, among other things, the 

construction of origin facilities and offloading facilities, and the acquisition of 

one or more enabling Federal and State 

permits. The projects CSX and others 

may have been pursuing were 

prolonged, highly contingent processes 

in which there are multiple potential 

bases for material delay or cessation of 

a project throughout the development 

cycle. That said, PHMSA understands 

the shelving of CSX’s or any other 

entities’ projects following the proposal 

of a time-limited, temporary suspension 

for which there could be alternative rail 

transportation methods evinces less an 

alleged ‘‘chilling’’ of investment than 

the significant uncertainty discussed in 

the NPRM regarding whether there 

would be any commercially viable 

projects for rail transportation of LNG in 

the near-term. 

And PHMSA understands that a 

variety of forces have created—and will 

continue to create throughout the 

suspension period—headwinds for the 

near-term commercial viability of any 

project for rail transportation of LNG. 

The NPRM explained that the near-term 

commercial prospects for LNG by rail 

(which the July 2020 Final Rule had 

acknowledged were uncertain at its 

issuance) had grown even more 

uncertain due to near-term structural 

changes in international markets 

including (1) massive investment in 

greatly increased export capacity by 

competing providers such as Qatar, and 

(2) reduced demand for LNG customers 

seeking to reduce their GHG 

emissions.31 The comments submitted 

by CSX, other industry stakeholders, 

and Landry, et. al. did not attempt to 

rebut this evidence, or PHMSA’s finding 

that the near-term commercial 

uncertainty for rail transportation of 

LNG had increased. Further, the 

structural headwinds for rail 

transportation of LNG are likely to 

accelerate in the near future, as the U.S. 

Energy Information Administration 

(EIA) predicts that the capacity of 


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32EIA, ‘‘U.S. LNG Export Capacity to Grow as 

Three Additional Projects Begin Construction,’’ 

(Sept. 6, 2022), https://www.eia.gov/todayinenergy/ 

detail.php?id=53719 (last visited May 12, 2023). 

See also A. Shiryaevskaya et al., Bloomberg, ‘‘World 

Gas Supply Shifts from Shortage to Glut with 

Demand Muted’’ (Apr. 16, 2023); L. Hampton, 

Reuters, ‘‘Wave of New LNG Export Plants 

Threatens to Knock Gas Prices’’ (Mar. 14, 2023). 

33See Intl. Energy Agency (IEA), World Energy 

Outlook: 2022 at 3, 25–26 (Oct. 2022); The 

Economist ‘‘War and Subsidies Have Turbocharged 

the Green Transition’’ (Feb. 13, 2023); Inst. for 

Energy Economics and Financial Analysis, Global 

LNG Outlook: 2023–2027 at 4–5 (Feb. 15, 2023). 

34See EIA, Annual Energy Outlook 2023 at 25 

(Mar. 2023). 

35N. Ruggiero, S&P Global Commodity Insights, 

U.S. Steel Sentiments Hit New High for 2023 As 

Mills Increase Finished Prices’’ (Mar. 13, 2023); R. 

Druzin, Argus Media, ‘‘U.S. Steel Price Driven Up 

by Multiple Factors’’ (Mar. 14, 2023); M. Derby, 

Reuters, ‘‘Premature for Fed to Call End to Rate 

Hikes with Inflation Still High, Williams Says (May 

9, 2023). 

36Amidst the limited domestic and international 

commercial prospects discussed here, it is hardly 

surprising that rail transportation of LNG has 

occurred by neither (1) existing DOT–113C120W 

tank cars pursuant to DOT–SP 20534 issued by 

PHMSA to ETS in 2019, nor (2) ISO tanks pursuant 

to an FRA approval issued to the Alaska Railroad 

Company in 2015. 

37CSX Comments at 1; Landry, et al. Comments 

at 1, 4, 5; RSI Comments at 2, 4; ‘‘Comments of U.S. 

House of Representatives Committee on 

Transportation and Infrastructure—Republican 

Minority Members’’ at 2–3 (Dec. 22, 2021) (House 

T&I Minority Comments). 

38The NPRM also explains there is also 

significant uncertainty regarding the commercial 

prospects of mode-switching (from rail tank car to 

MC–338 cargo tanks carried by truck) given that 

such mode-switching would sacrifice (potentially 

significant) economies of scale offered by rail tank 

car transportation of LNG. See 86 FR at 61737. This 

observation was not addressed by any of the 

comments submitted by the House T&I Minority, 

Landry, et al., RSI, or CSX. 

39PHMSA disagrees with Landry, et al. that 

PHMSA’s authorization of rail transportation of 

LNG in existing, less robust DOT–113C120W tank 

cars pursuant to DOT–SP 20534 reveals PHMSA’s 

concerns regarding safety of the DOT–113C120W9 

tank car as pretextual. Landry, et al. Comments at 

4. The conditions it imposed—a defined, limited 

duration, a single route, and various operational 

controls—facilitate understanding and bounding of 

safety and environmental risks notwithstanding 

transportation within a legacy DOT–113C120W 

tank car. In contrast, the July 2020 Final Rule’s 

nationwide, perpetual authorization of rail tank car 

transportation of LNG in a new tank car 

specification could entail a fundamentally different 

risk profile than DOT–SP 20534 or any other special 

permits that PHMSA may issue authorizing (on an 

ad hoc basis) rail tank car transportation of LNG. 

In addition, no LNG was ever shipped under DOT– 

SP 20534, which has now expired and which 

PHMSA has declined to renew. 

pipeline-supplied U.S. LNG export 

terminals are expected to increase 

significantly beginning around 2025 

which some analysts note could depress 

the offtake prices for LNG in the 

international export market—which 

could divert demand for LNG exports 

that could have been serviced by LNG 

by rail.32 Further, the supply shocks of 

the conflict in Ukraine have highlighted 

both in the United States and abroad the 

volatility of natural gas prices and 

fragility of international LNG market 

supply, accelerating movement among 

historical consumers of natural gas 

toward renewable energy and reduced 

reliance on LNG exports.33 Meanwhile, 

domestic consumption of natural gas in 

the United States is expected to fall in 

the next decade due to increasing 

electrification driven by consumer 

preferences and Federal and State 

policy initiatives to reduce GHG 

emissions.34 Durably high commodity 

(e.g., steel) prices and interest rates 35

would also tend to discourage capital 

investment in the manufacture of a new 

fleet of DOT–113C120W9-specification 

tank cars for dedicated commercial LNG 

service. 

PHMSA finds this recent evidence, 

coupled with the evidence discussed in 

the NPRM, augurs uncertainty regarding 

the commercial prospects for rail 

transportation of LNG that will continue 

beyond the originally proposed 

suspension period and into the longer 

suspension period adopted in this final 

rule.36 Following the conclusion of the 

(temporary) suspension period, 

stakeholders would be able to evaluate 

whether the commercial prospects for 

rail tank car transportation of LNG 

pursuant to the July 2020 Final Rule 

merit pursuing. 

E. Comments Contending That the LNG 

by Rail Improves Safety 

PHMSA received several comments 

arguing temporary suspension of the 

July 2020 Final Rule would forfeit safety 

benefits.37 Some of those comments 

pointed to the physical properties (e.g., 

auto-ignition temperatures) of LNG they 

assert make its rail transportation 

inherently safer than transportation of 

natural gas in other physical states. 

Others contended that, absent the July 

2020 Final Rule, industry would be 

forced to utilize other modes of 

transportation of natural gas—in 

particular, highway transportation via 

MC–338 cargo tanks—which would 

entail more frequent accidents and 

incidents than rail transportation. Some 

comments generally praised the DOT– 

113C120W9-specification tank car 

approved for use in transporting LNG in 

the July 2020 Final Rule because it was 

an improvement on the proven, existing 

DOT–113C120W-specification tank cars 

that PHMSA had approved for use in 

rail tank car transportation of LNG via 

SP. Lastly, RSI asserted that by 

discouraging investment in DOT– 

113C120W9 tank cars for LNG service, 

PHMSA was discouraging construction 

of those enhanced tank cars for use in 

transporting other cryogenic liquid 

hazardous materials. 

PHMSA Response 

PHMSA finds these contentions 

unconvincing. As presented, each of 

those arguments suggest that any 

potential benefits of rail tank car 

transportation of LNG will be lost if 

PHMSA suspends the July 2020 Final 

Rule as proposed in the NPRM. But that 

binary understanding confuses the 

temporary, time-limited suspension 

proposed in the NPRM and adopted in 

this final rule with a permanent or 

indefinite ban on rail tank car 

transportation of LNG. A temporary 

suspension would mean that any safety 

benefits would only be unavailable for 

the suspension period—i.e., until the 

end of June 2025 (at the latest). See 86 

FR at 61737–38. Further, any such 

potential, time-limited comparative 

advantage turns on whether any rail 

transportation of LNG pursuant to the 

July 2020 Final Rule would in fact have 

occurred during the suspension period, 

but, as explained above, market 

conditions now and in the near future 

do not support demand to transport 

LNG in rail tank cars. That demand, 

which was uncertain at issuance of the 

July 2020 Final Rule has become only 

more uncertain since given the 

commercial headwinds facing the 

development of that market.38 Further, 

any time-limited comparative advantage 

from leaving the July 2020 Final Rule 

undisturbed would also be mitigated by 

the availability of other regulatory 

vehicles (FRA approvals and PHMSA 

SPs) that entities can pursue during the 

suspension period. 

Uncertainty regarding whether the 

July 2020 Final Rule’s authorization of 

rail transportation in DOT–113C120W9- 

specification tank cars ensures adequate 

protection of public safety has only 

increased since the time of issuance of 

each of the July 2020 Final Rule and the 

NPRM proposing its suspension. The 

July 2020 Final Rule itself 

acknowledged that its authorization of 

rail transportation of LNG in the new 

DOT–113C120W9 tank car did not turn 

only on the tank car itself; rather, a 

number of other factors (including, but 

not limited to, the material properties of 

LNG and natural gas, the quantity of 

LNG that will be moved by rail, the 

routes involved, the availability of 

emergency response planning resources, 

etc.) affected the risks involved in rail 

tank car transportation of LNG. See 86 

FR at 61734.39 Subsequently, the TRB 

Phase I Report highlighted gaps 

(discussed in section II.C above) within 

the LNG Task Force testing efforts 

undertaken to improve confidence in 


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40 IAFF, Doc. No. PHMSA–2021–0058–6442, 

‘‘Comments Regarding Suspension of Hazardous 

Materials Regulations Amendments Authorizing 

Transportation of Liquefied Natural Gas (LNG) by 

Rail’’ at 1–2 (Dec. 23, 2021). 

41 In addition, DOT–113C120W9-specification 

tank cars constructed for cryogenic ethylene (or 

other cryogenic liquid) service could not be 

converted for LNG service easily or immediately: 

each tank car would have to be cleaned and purged; 

the physical configuration of critical, installed 

components of each tank car (e.g., pressure relief 

valve piping, valves, and other service equipment) 

would have to be changed; and the re-configured 

tank car would have to obtain a design certification 

from the American Association of Railroads Tank 

Car Committee. Mechanically converting one car— 

separate from the approval process for the Tank Car 

Committee—could take several months to over a 

year. 

42House T&I Minority Comments at 2–3; Landry, 

et al. Comments at 5–7; CSX Comments at 1–2; RSI 

Comments at 2, 5. 

the safety benefits of rail transportation 

of LNG. TRB’s subsequent Phase II 

Report identified additional areas 

warranting additional research and 

evaluation to ensure the safety of rail 

transportation of LNG in the DOT– 

113C120W9-specification tank car. 

Although PHMSA has revised the LNG 

Task Force’s testing and evaluation 

activities in response to the TRB Phases 

I and II Report recommendations, that 

work continues; and even after 

completing the activities PHMSA must 

evaluate the results and determine 

whether and how to make permanent 

modifications to the HMR governing rail 

transportation of LNG. Further, the 

comments submitted in response to the 

NPRM proposing suspension of the July 

2020 Final Rule show a lack of 

consensus among stakeholders 

regarding whether some of the critical 

safety challenges known when PHMSA 

issued the July 2020 Final Rule have 

been addressed. For example, a 

comment submitted by IAFF on the 

NPRM noted that ‘‘the capabilities of 

fire fighters and emergency medical 

responders to safely and effectively 

respond to hazmat incidents involving 

LNG rail cars has not improved since 

our 2019 comments’’ notwithstanding 

any PHMSA and FRA outreach and 

engagement efforts in the interim.40

Additionally, comments touting the 

inherent safety advantages of rail tank 

car transportation of liquefied natural 

gas miss the larger safety issue toward 

which much of the LNG Task Force 

testing evaluation activity is directed. 

Natural gas in liquid form, undisturbed 

within a DOT–113C120W9 tank car is a 

very stable material that will not 

combust unless it vaporizes which only 

happens if the material warms. Further, 

any vapor present in the outage of the 

tank car will be of a concentration that 

is too high to combust. Rather, the 

principal safety concern—highlighted 

by PHMSA in the July 2020 Final Rule, 

in the NPRM and comments thereon, 

and in TRB’s evaluation of safety risks 

associated with rail transportation of 

LNG—pertains to consequences should 

either there be a release of LNG to 

atmosphere, or a tank car be exposed to 

harsh conditions during an incident or 

accident. LNG releases can expose 

personnel and materials to extreme cold 

(as low as ¥120 °C or ¥260 °F) and can 

be an asphyxiant within a confined 

space. When released to the atmosphere 

(as a result of a puncture of the inner 

and outer tanks during an accident or 

incident), liquid methane will convert 

to a gas that has a relatively low autoignition point (about 540 °C or 1000 °F) 

in addition to being highly combustible 

when exposed to an ignition source 

such as fire or electrical sparking. When 

methane ignites, it burns at very high 

temperatures (about 1330 °C, or 2426 

°F), potentially resulting in exposure of 

personnel and materials—including 

(potentially) undisturbed DOT– 

113C120W9 tank cars adjacent to an 

LNG pool fire to significant radiant heat 

hazards. Although PHMSA had 

undertaken (via the LNG Task Force) a 

robust testing regime to develop a 

fulsome understanding of those 

potential, significant hazards of LNG 

when transported by rail tank car in 

parallel with the development and 

issuance of the July 2020 Final Rule, the 

subject matter expert recommendations 

within each of the TRB’s Phases I and 

II Reports underscore the value in 

obtaining that understanding from 

completing enhanced testing and 

evaluation activities before LNG begins 

moving in DOT–113C120W9 rail tank 

cars pursuant to the July 2020 Final 

Rule. A temporary suspension gives the 

LNG Task Force and PHMSA an 

opportunity to complete that critical 

work. 

PHMSA also disagrees that 

suspension of the July 2020 Final Rule 

would discourage investment in 

enhanced, DOT–113C120W9- 

specification tank cars for use in rail 

transportation of any cryogenic liquid 

hazardous materials—not just LNG. 

PHMSA acknowledges that the HMR (at 

49 CFR part 179 Subpart F) 

contemplates use of DOT–113C120W9- 

specification tank cars for transportation 

of other materials authorized for 

transportation in the DOT–113 series 

tank cars in that DOT–113C120W9 tank 

cars will also meet and exceed the 

minimum DOT–113C120W standard. 

However, factors influencing whether to 

invest in new DOT–113C120W9- 

specification tank cars for use in 

transporting those other cryogenic 

liquids are very different from the 

factors driving decision making on 

investing in those tank cars for LNG 

service. For example, those other 

cryogenic liquid hazardous materials 

would likely be destined for more 

mature domestic and international 

markets than the (currently) speculative 

domestic and international market for 

LNG transported by rail tank car. 

Perhaps for this reason, PHMSA is 

aware of at least one entity having 

submitted an order for construction of 

new DOT–113C120W9-specification 

tank cars for cryogenic ethylene 

service—even as, over three years after 

the July 2020 Final Rule issued, PHMSA 

is unaware of a single order from a 

commercial entity for a new DOT– 

113C120W9 specification tank car for 

LNG service.41

For the reasons discussed above and 

in section III.D, PHMSA concludes that 

uncertainty on critical issues regarding 

the safety profile of rail tank car 

transportation of LNG pursuant to the 

July 2020 Final Rule has increased since 

its issuance—and will persist through 

the suspension period adopted in this 

final rule until PHMSA and FRA have 

had an opportunity to complete and 

review the results of the LNG Task 

Force’s testing and evaluation activities 

and implement any necessary regulatory 

amendments in the companion 

rulemaking under RIN2137–AF54. 

F. Comments Alleging Environmental 

Benefits From LNG by Rail 

PHMSA received several comments 

arguing temporary suspension of the 

July 2020 Final Rule would forfeit 

important environmental benefits. 

Comments describe several mechanisms 

for such environmental benefits 

including potential reduction in flaring 

from oil and gas production activities 

and reduced GHG emissions compared 

to highway transportation of the same 

volume of LNG in MC–338 cargo 

tanks.42

PHMSA Response 

For largely the same reasons 

discussed in section III.E above, PHMSA 

finds these arguments unconvincing. 

The statements in those comments 

regarding the environmental benefits of 

the July 2020 Final Rule were offered 

without any evidentiary support and 

little analysis, frustrating evaluation 

against the comments submitted in 

response to the NPRM attributing 

potential environmental harms 

(including those pertaining to 

commodity releases and lifecycle and 

indirect GHG emissions) to rail tank car 


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43Landry, et al. Comments at 1, 4. 

44This argument is also in tension with 

exhortations elsewhere in the Landry, et al. 

comments for PHMSA to consider policy issues 

(pertaining to U.S national security and consumers’ 

home heating bills) that are arguably more 

‘‘attenuated’’ and less ‘‘tethered’’ to PHMSA’s 

authority under the HMTA. See Landry, et al. 

Comments at 1, 7–10. Indeed, Landry, et al. also 

urges PHMSA to consider the indirect relationship 

between the rulemaking and production activity by 

claiming that rail tank car transportation could 

yield reductions in flaring from oil and gas 

production activities. Id. at 7. 

45Landry, et al. Comments at 4 (citing 86 FR at 

61736). 

46See 85 FR at 44995. See also Final Regulatory 

Impact Assessment, Doc. No. PHMSA–2018–0025– 

0479, at 4, 32–33 & n. 48; Final Environmental 

Assessment, Doc. No. PHMSA–2018–0025–0478 at 

35–36, 52. 

47House T&I Minority Comments at 2 & n.8; 

Landry, et al. Comments at 3–4. 

transportation of LNG. As explained in 

the NPRM, both environmental benefits 

and risks of rail tank car transportation 

of LNG are a function of whether, when, 

and where viable market opportunities 

for such transportation develops. The 

July 2020 Final Rule acknowledged 

considerable uncertainty regarding 

those questions—and as explained in 

the section III.D above, the commercial 

prospects for rail tank car transportation 

of LNG are more speculative now than 

in July 2020 or even when the NPRM in 

this proceeding issued in November 

2021. 

These considerations are particularly 

relevant to the mechanisms for 

environmental benefits identified in 

those comments charactering the 

environmental benefits of the July 2020 

Final Rule. Whether a market will 

emerge during the suspension period (or 

for that matter, may ever emerge) for 

capture of methane that would be 

otherwise be flared from oil and gas 

production operations and transported 

by rail tank car is not a straightforward 

proposition. In addition to the nontrivial capital investment for rail tank 

cars, such an approach would require, 

among other things, liquefaction 

equipment at the production site and 

gasification equipment at the 

destination and enabling Federal or 

state regulatory authorizations—and 

each of those elements may need to be 

procured sooner at break-even or lower 

cost than alternatives such as capture 

and transportation via pipeline or MC– 

338 cargo tank carried by truck (or, by 

extension, by rail tank car via FRA 

approval or PHMSA SP). And even if 

such a market opportunity would have 

arisen, meaningful evaluation of the 

GHG emissions benefits would 

inevitably involve myriad assumptions 

(e.g., accident/incident rates for rail and 

highway transportation; lifecycle 

emissions from construction and 

operation of the tank cars and related 

equipment; potential indirect effects 

such as emissions associated with 

upstream production induced by newlyavailable takeaway capacity) that 

increase uncertainty regarding GHG 

impacts. Similarly, modal shifting 

between highway transportation of LNG 

via MC–338 cargo tank and rail tank car 

may not be as easy or as desirable as 

those comments assume. As discussed 

above in section III.D, highway 

transportation sacrifices economies of 

scale that is among the principal 

advantages of rail tank car 

transportation of LNG. 

For the reasons discussed above, 

PHMSA concludes that uncertainty 

regarding the potential environmental 

benefits and harms from rail tank car 

transportation of LNG pursuant to the 

July 2020 Final Rule will continue 

throughout the suspension period 

adopted in this Final Rule. This 

persistent uncertainty on a critical 

potential benefit identified for the July 

2020 Final Rule militates in favor of its 

temporary suspension as the LNG Task 

Force completes its testing and 

evaluation activity and PHMSA 

implements any necessary regulatory 

amendments in the companion 

rulemaking under RIN 2137–AF54. 

G. Comments Alleging PHMSA Is 

Overstepping Its Authority by 

Attempting To Regulate Oil and Gas 

Production 

PHMSA received comments alleging 

that PHMSA’s proposed suspension of 

the July 2020 Final Rule overstepped its 

statutory authority under the HMTA by 

attempting to discourage oil and gas 

production activity.43

PHMSA Response 

Those arguments mischaracterize 

PHMSA’s intentions and misapprehend 

pertinent law.44 Indeed, PHMSA 

nowhere in either the NPRM or in this 

Final Rule identifies decreasing oil and 

gas production activity as an explicit 

goal of its suspension of the July 2020 

Final Rule. Instead, Landry, et al. 

divines that intention from a reference 

to ‘‘[induced] natural gas extraction’’ 

within a list of several considerations in 

the NPRM that are probative to the 

safety and environmental risks 

attendant to rail tank car transportation 

of LNG.45 But PHMSA’s 

acknowledgement in the NPRM of the 

common-sense proposition that new oil 

and gas production activity—and any 

attendant environmental benefits as 

well as risks (including release to 

atmosphere of methane lost during 

extraction and transportation) 

associated with those activities—could 

be a reasonably foreseeable consequence 

of authorizing new takeaway capacity is 

consistent with its obligations under 

NEPA. See 86 FR 61735–36 & n. 35. It 

is also consistent with the reasoning 

supporting the July 2020 Final Rule, 

which (along with its supporting 

documentation) explicitly identified 

potential indirect effects on each of 

upstream production activity and 

downstream fuel switching from coal as 

justifications for that rulemaking.46

Nor, moreover, would any indirect 

effect on production activity from 

PHMSA’s exercise of its authority under 

the HMTA to regulate interstate rail 

transportation of hazardous material 

implicate, as suggested by Landry, et al., 

the ‘‘major questions’’ concerns 

articulated in Utility Air Regulatory 

Group v. EPA (573 U.S. 302 (2014)), and 

in West Virginia v. EPA (597 U.S. 

(2022)). Neither case disturbed the 

longstanding tolerance of minor, 

incidental, or accidental effects when an 

agency takes actions within the core of 

its statutory responsibilities. And here, 

PHMSA is doing just that: imposing a 

temporary suspension of a recent (July 

2020) exercise of its authority under the 

HMTA to prescribe regulations 

governing interstate transportation by 

rail of hazardous materials to 

temporarily restore the status quo ex 

ante preceding the July 2020 Final Rule. 

Lastly, given that (as explained in 

section III.D above) there is considerable 

uncertainty regarding the commercial 

viability of rail tank car transportation 

of LNG, the limited-duration suspension 

adopted in this Final Rule hardly 

resembles the fact sets before the 

Supreme Court in either of the above 

decisions in which EPA was said to 

have ‘‘discover[ed] . . . an unheralded 

power to regulate ‘a significant portion 

of the American economy.’ ’’ 

H. Comments Alleging PHMSA Did Not 

Meet Its Evidentiary Burden Under the 

APA for Temporary Suspension of the 

July 2020 Final Rule 

PHMSA also received comments 

claiming that the NPRM did not make 

the required showing under the APA for 

suspension of currently-effective 

regulations.47 Landry, et al. in particular 

characterizes controlling precedent as 

establishing a uniquely high burden for 

temporary suspension of existing 

regulations. PHMSA must, in their view, 

provide ‘‘a detailed justification of new 

facts that contradict facts underlying 

. . . prior policy’’, as well as ‘‘a more 

‘reasoned explanation’ to justify 

suspension of a regulation’’ than merely 

the ‘‘inauguration of a new President.’’ 

PHMSA must also demonstrate an 


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48House T&I Minority Comments at 1, 3; Landry, 

et al. Comments at 7–8; RSI Comments at 3. 

‘‘awareness that it is changing position.’’ 

Landry, et al. ultimately concluded that 

PHMSA ‘‘had not provided any . . . 

explanations’’ demonstrating 

compliance with those purported 

requirements. 

PHMSA Response 

These criticisms misapprehend 

controlling precedent. Indeed, PHMSA 

does not understand the cited decisions 

to stand for the proposition suggested in 

those comments that ‘‘reasoned 

decision-making’’ in the context of 

suspension of currently effective 

regulations necessarily entails a 

heightened evidentiary burden. Rather, 

the Supreme Court explicitly stated that 

the evidentiary burden for agency action 

is not heightened when that action is a 

change. F.C.C. v. Fox Studios, 556 U.S. 

at 502, 514–15 (2009). And although 

agencies suspending currently effective 

regulations must acknowledge a change 

in their position, address any tensions 

between conflicting factual findings, 

and confront any serious reliance 

interests on the old policy, those 

common-sense expectations do not 

constitute a different, uniquely higher 

evidentiary standard for suspending a 

currently-effective regulation; rather, 

those are the sort of issues an agency 

may need to address (as applicable) 

when adopting any change in its 

regulations. See Motor Veh. Mfrs. Ass’n 

v. State Farm Ins., 463 U.S. 29, 51–52 

(1983). 

Nor did Landry, et al.’s comments 

provide any analysis explaining how 

PHMSA had run afoul of judicial 

guardrails for suspending currentlyeffective regulations. They simply 

asserted that PHMSA had failed to 

‘‘explain[ ]’’ its compliance with 

pertinent APA requirements. But the 

NPRM acknowledged that it proposed a 

change in position from the July 2020 

Final Rule: it stated in multiple places 

that rail tank car transportation of LNG 

authorized by the July 2020 Final Rule 

would be temporarily suspended. See, 

e.g., 86 FR at 61731–32. Further, 

PHMSA described at length its rationale 

and the evidence relied on in making 

that change. Specifically, information 

(including the TRB Phase 1 Report, 

COVID-related delays in the execution 

of LNG Task Force testing and 

evaluation efforts that had been 

expected to corroborate the conclusions 

in the July 2020 Final Rule, and 

potential fundamental shifts in the 

domestic and international market 

dynamics) that had emerged following 

issuance of the July 2020 LNG Final 

Rule cast doubt on the validity of 

PHMSA’s understanding of the potential 

benefits and risks on which that 

rulemaking’s policy decisions rested. 

See 86 FR at 61735–36. And (as 

explained in section III.D above) 

because uncertainty on these 

considerations has only increased since 

the NPRM’s issuance in November 2021, 

PHMSA has now decided to impose that 

suspension with a marginally longer 

(but still time-limited) duration. Lastly, 

this decision does not rest, as Landry, et 

al. suggests, on specious reasoning that 

‘‘no policy is better than the old policy 

solely because a new policy might be 

put in place . . .’’; rather, temporary 

suspension ensures that no rail car 

transportation of LNG pursuant to the 

July 2020 Final Rule will occur during 

the time needed for PHMSA to develop 

confidence regarding its potential risks 

and benefits within the companion 

rulemaking under RIN 2137–AF54. 

I. Comments Alleging That PHMSA’s 

Proposal Will Have Miscellaneous 

Adverse Consequences for Regulated 

Entities, the U.S. Economy, and 

National Security 

PHMSA also received a handful of 

comments warning of miscellaneous 

adverse effects from the NPRM’s 

proposed suspension of the July 2020 

Final Rule.48 Certain members of the 

U.S. House Transportation and 

Infrastructure Committee and Landry, et 

al. caution suspension of the July 2020 

Final Rule could increase household 

energy expenses and compromise U.S. 

energy independence and geopolitical 

influence. Meanwhile RSI warns that 

the NPRM’s invocation of economic 

uncertainty and ‘‘hypothetical 

concerns’’ as considerations when 

tailoring HMR requirements could 

portend shifting regulatory requirements 

for the transportation of other hazardous 

materials. RSI also contends that a more 

appropriate tool for addressing 

PHMSA’s concerns with the July 2020 

Final Rule would be to exercise its 

authority under § 107.339 to obtain 

emergency orders from a U.S. District 

Court to address ‘‘imminent hazards.’’ 

PHMSA Response 

PHMSA finds these comments 

unconvincing. The claim that temporary 

suspension of the July 2020 Final Rule 

could affect U.S. household energy 

prices or the geopolitical balance of 

power strains credulity given that no 

DOT–113C120W9 tank cars intended for 

commercial LNG service have been sold 

and the commercial viability of such rail 

tank car transportation is increasingly 

uncertain. Additionally, RSI’s concern 

that PHMSA could invoke changing 

market dynamics to modify 

longstanding HMR requirements for 

other hazardous materials is misplaced. 

Unlike other hazardous materials, the 

rail tank car transportation of LNG is not 

a mature market—in fact, as discussed 

elsewhere in this Final Rule, no such 

market has emerged in over three years 

since the July 2020 Final Rule issued 

and a market may not emerge at all. Nor 

does PHMSA’s decision to temporarily 

suspend the July 2020 Final Rule hardly 

address merely ‘‘hypothetical 

concerns’’; rather, (as discussed in 

sections III.E and F above) the potential 

safety and environmental hazards 

associated with LNG could be 

significant, and it is PHMSA’s 

responsibility under the HMTA to 

evaluate and adjust the HMR to ensure 

its transportation by rail tank car is 

conducted in a manner that protects 

public safety and the environment. 

Additionally, PHMSA’s decision in this 

Final Rule to adjust pertinent HMR 

requirements on a time-limited basis 

and before any rail tank car 

transportation of LNG commences (or is 

likely to commence), minimizes the risk 

of stranded investments or lost business 

opportunities for regulated entities 

should PHMSA’s ongoing evaluation of 

the safety and environmental risks and 

benefits merit imposing additional or 

conflicting safety requirements in the 

companion rulemaking under RIN 

2137–AF54. 

In addition, the final rule addresses 

any potential public safety and 

environmental risks from rail tank car 

transportation of LNG via a generic, 

nationwide, time-limited suspension 

following notice-and-comment 

rulemaking is a more appropriate 

approach than utilizing the emergency 

order authority recommended by RSI. 

The July 2020 Final Rule was a 

legislative rule that itself was the 

product of notice-and-comment 

rulemaking, and the APA establishes a 

presumption that a subsequent 

legislative rule providing for its 

modification (to include its temporary 

suspension) should similarly involve 

notice-and comment rulemaking. See 5 

U.S.C. 553. In addition, PHMSA’s 

emergency order authority may be 

difficult to assert on a time-limited, 

precautionary, nationwide basis like the 

temporary suspension adopted in this 

Final Rule. Each of PHMSA’s § 107.339 

emergency order authority and the 

Secretary‘s authority to address 

imminent hazards under 49 U.S.C. 

5122(b) are seldom exercised. A finding 

of ‘‘imminent harm’’ may make it more 

difficult for any controls addressing that 

harm to be removed later based on 


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49 58 FR 51735 (Oct. 4, 1993). 

50 88 FR 21879 (April 11, 2023). 

51See EIA, ‘‘Price of U.S. Liquefied Natural Gas 

Exports’’, https://www.eia.gov/dnav/ng/hist/ 

n9133us3m.htm (last accessed May 24, 2023); EIA, 

‘‘Average Cost of Wholesale U.S. Natural Gas in 

2022 Highest Since 2008’’, https://www.eia.gov/ 

todayinenergy/detail.php?id=55119#:∼:text=

In%202022%2C%20the%20wholesale

%20U.S.,on%20data%20from

%20Refinitiv%20Eikon (last accessed May 24, 

2023). 

52For approved and under construction U.S. LNG 

projects see EIA, ‘‘U.S. LNG export capacity to grow 

as three additional projects begin construction’’, 

https://www.eia.gov/todayinenergy/

detail.php?id=53719 (last accessed June 28, 2023). 

53As noted earlier in this final rule, PHMSA 

previously denied an application for renewal of a 

special permit, in part, on the basis that the 

application for renewal did not discuss any of the 

concerns raised in the NPRM in this proceeding. 

PHMSA will consider all applications for a special 

permit that meet the requirements set forth in 49 

Continued 

PHMSA’s evaluation of whether and 

how to amend pertinent HMR 

requirements in a companion 

rulemaking under RIN 2137–AF54. 

J. Comments Beyond the Scope of This 

Rulemaking 

PHMSA received miscellaneous 

comments beyond the scope of this 

rulemaking. These comments pertained 

to concerns regarding PHMSA’s process 

in developing, and reasoning in 

adopting, the July 2020 Final Rule; 

concerns with the adequacy of 

conditions imposed by PHMSA within 

DOT–SP 20534 issued to ETS in 2019; 

a requested ban on fracking (the process 

of hydraulic fracturing to extract oil or 

gas) and all fossil fuels; and additional 

miscellaneous comments unrelated to 

this rulemaking or rail tank car 

transportation of LNG. A number of 

commentors requested repeal of any 

existing regulatory approvals or 

regulatory provisions—whether by FRA 

or PHMSA—authorizing rail 

transportation of LNG. 

PHMSA Response 

Although PHMSA appreciates the 

concerns raised by the commenters that 

the NPRM’s proposal to suspend the 

transportation of LNG by rail tank car 

authorized by the July 2020 Final Rule 

did not go far enough to protect public 

safety and the environment, PHMSA 

declines to adopt their far-reaching 

recommendations in this proceeding. 

However, PHMSA encourages those 

stakeholders to consider submitting 

comments in response to any future 

notice of proposed rulemaking in 

PHMSA’s companion rulemaking under 

RIN 2137–AF54, as well as to engage 

other Federal and State regulatory 

authorities with jurisdictional 

responsibilities for the issues they asked 

PHMSA to address. 

IV. Regulatory Analyses and Notices 

A. Statutory/Legal Authority 

Statutory authority for this final rule 

is provided by the HMTA. 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 § 1.97(b). 

B. Executive Orders 12866 and 14094, 

and DOT Regulatory Policies and 

Procedures 

Executive Order 12866 (‘‘Regulatory 

Planning and Review’’),49 as amended 

by Executive Order 14094 

(‘‘Modernizing Regulatory Review’’),50

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. 

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. Executive Order 

14094 amended Executive Order 12866, 

which defines significant regulatory 

actions. This rulemaking is considered a 

significant regulatory action under 

section 3(f) of Executive Order 12866 as 

amended by Executive Order 14094. 

This final rule has, therefore, been 

reviewed by OMB. 

PHMSA concludes that the temporary 

suspension of transporting LNG by rail 

tank car is not expected to have an 

economic impact because LNG transport 

by rail tank car is not expected to occur 

during the suspension period. As 

explained in section III.D above, since 

issuance of the July 2020 Final Rule, the 

commercial prospects for rail tank car 

transportation of LNG have become 

increasingly unlikely. LNG has not been 

transported in any rail tank cars 

(whether pursuant to the July 2020 Final 

Rule, SP issued by PHMSA, or FRA 

approval), and PHMSA is unaware of 

any planned movements in the near 

future. Indeed, the development of the 

necessary infrastructure—including 

construction of DOT–113C120W9 tank 

cars, loading and unloading facilities, 

vessel handling facilities if sea transport 

is required, liquification facilities, and 

regasification facilities—to transport 

LNG by rail as authorized by the July 

2020 Final Rule demands significant 

financial investment, long-term 

commitment, and considerable planning 

associated with constructing a new LNG 

tank car fleet (which construction may 

itself be subject to delays because of 

limited capacity in the rail car 

manufacturing industry). PHMSA is 

unaware of any orders having been 

placed for the manufacture of new 

DOT–113C120W9 tank cars for 

commercial LNG service. This absence 

of commercial demand occurred despite 

the highest prices for domestic U.S. 

natural gas markets and LNG export 

markets in nearly a decade.51

Additionally, it appears LNG export 

prices have risen faster than the 

domestic price which has resulted in a 

substantial increase in US LNG exports 

over the last decade. However, the 

increase in export capacity does not 

appear to have translated into increased 

demand for tank cars, possibly due to 

the majority of the increase in 

liquefication capacity occurring at 

waterfront LNG facilities.52

PHMSA expects no economic impact 

due to the 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 July 

2020 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.53 Further, temporary 


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CFR 107, Subpart B and notes that each special 

permit application is considered on its own merits. 

54 Id. at 33–34, 56 (discussing higher direct GHG 

emissions from highway transportation) and 37–38 

(discussing higher risk of crashes from highway 

transportation). 

55 64 FR 43255 (Aug. 10, 1999). 

56 74 FR 24693 (May 22, 2009). 

57 67 FR 53461 (Aug. 16, 2002). 58 DOT, ‘‘Rulemaking Requirements Related to 

Small Entities,’’ https://www.transportation.gov/ 

regulations/rulemaking-requirements-concerningsmall-entities (last visited Jun. 17, 2021). 

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, the 

limited duration of the suspension will 

also mitigate any potential adverse 

economic, public safety, or 

environmental impacts that could arise 

in the unlikely event that demand for 

rail tank car transportation under the 

July 2020 Final Rule would have 

materialized during the suspension 

period in the absence of this final rule. 

In addition to the PHMSA SP and 

FRA approval alternatives, shippers 

could transport LNG by highway via 

MC–338 insulated cargo tanks. All of 

these alternatives for LNG shippers 

would involve higher costs than rail 

transportation, but they are available in 

the unlikely case that market conditions 

evolve to warrant LNG transportation 

prior to June 30, 2025, or the completion 

of the companion rulemaking.54

C. Executive Order 13132 

PHMSA analyzed this rulemaking in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’) 55 and its 

implementing Presidential 

Memorandum (’’Preemption’’).56

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 contain 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 HMTA 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 final 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. 

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 

Tribes. 

In addition to the petitions filed by 

the environmental groups and State 

attorneys general mentioned above, the 

Puyallup Tribe also challenged the July 

2020 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 

final rule and concluded that it will not 

significantly or uniquely affect Tribal 

communities or Tribal governments. 

This rulemaking does not impose 

substantial compliance costs on Tribal 

governments or communities, nor does 

it mandate Tribal action. Insofar as 

PHMSA expects the final rule will not 

adversely affect the safe transportation 

of hazardous materials generally, 

PHMSA does not expect it will entail 

disproportionately high adverse risks for 

Tribal communities. This final rule 

could in fact reduce risks to Tribal 

communities, as it could avoid the 

release of hazardous materials (in 

particular, LNG) by railroad in the 

vicinity of Tribal communities. For 

these reasons, PHMSA has concluded 

that the funding and consultation 

requirements of Executive Order 13175 

and DOT Order 5301.1 do not apply. 

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’’) 57

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.58

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 and ensure 

that potential impacts of draft rules on 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60369 

59 85 FR 46220 (Jul. 31, 2020). 60 85 FR 73128 (Nov. 16, 2020). 

61Occupation labor rates based on 2022 

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 ($52.36) 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 69.0 percent of total compensation 

(total wage = wage rate/wage % of total 

compensation). 

62 Ibid. 

63See also 40 CFR parts 1501 to 1508. 

small entities are properly considered. 

Consistent with the analysis above, 

PHMSA certifies that the temporary 

suspension of the July 2020 Final Rule 

will not have a significant economic 

impact on a substantial number of 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 rulemaking 

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 July 2020 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 July 2020 

Final Rule, PHMSA published both a 

60-day 59 and 30-day 60 notice and 

comment period 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 implements a 

temporary suspension of the 

authorization to ship LNG by rail tank 

car pursuant to July 2020 Final Rule, 

PHMSA estimates this rulemaking 

would result in a decrease in the burden 

associated with additional rail 

transportation safety and security 

planning requirements imposed by the 

July 2020 Final Rule. Because this final 

rule contains revisions to an 

information collection approved under 

OMB control number 2137–0612 that 

are subject to review by OMB under the 

PRA Act, PHMSA has submitted the 

revised information collection to OMB 

and will publish a subsequent Federal 

Register notice to advise the public 

when OMB has approved the revisions. 

The following reflects this estimated 

decrease in burden: 

Decrease in primary route analysis 

Change in 

number of 

railroads 

Decrease in 

number of 

routes 

Burden 

hours per 

route 

Decrease in 

total burden 

hours 

Salary 

cost per 

hour 61

Decrease in 

total salary 

cost 

Decrease in 

total burden 

cost 

Class I Railroads ....................................................................... 0 (2) 80 (160) $75.88 ($12,141) $0 

Class II Railroads ...................................................................... 0 (1) 80 (80) 75.88 (6,071) 0 

Class III Railroads ..................................................................... 0 (1) 40 (40) 75.88 (3,035) 0 

Total ................................................................................... 0 (4) .................... (280) .................... (21,248) 0 

Decrease in alternate route analysis 

Change in 

number of 

railroads 

Decrease in 

number of 

routes 

Burden 

hours per 

route 

Decrease in 

total burden 

hours 

Salary 

cost per 

hour 62

Decrease in 

total salary 

cost 

Decrease in 

total burden 

cost 

Class I Railroads ....................................................................... 0 (2) 120 (240) $75.88 ($18,212) $0 

Class II Railroads ...................................................................... 0 (1) 120 (120) 75.88 (9,106) 0 

Class III Railroads ..................................................................... 0 (1) 40 (40) 75.88 (3,035) 0 

Total ................................................................................... 0 (4) .................... (400) .................... (30,354) 0 

Total Annual Decrease in Number of 

Respondents: 0. 

Total Annual Decrease in Number of 

Response: 8. 

Total Annual Decrease in Burden 

Hours: 680. 

Total Annual Decrease in Salary 

Costs: $51,598. 

Total Annual Decrease in Burden 

Costs: $0. 

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 notice of 

proposed rulemaking 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, the 

agency must prepare, amongst other 

things, a written statement that 

qualitatively and quantitatively assesses 

the costs and benefits of the Federal 

mandate. 

This 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), as amended (42 

U.S.C. 4321 et seq.),63 requires federal 

agencies to consider the environmental 

impacts of their actions in the decisionmaking process. NEPA requires Federal 

agencies to assess the environmental 

effects of proposed Federal actions prior 

to making decisions and involve the 

public in the decision-making process. 

Agencies must prepare an 

environmental assessment (EA) for an 

action for which a categorical exclusion 

is not applicable and is either unlikely 

to have significant effects or when 

significance of the action is unknown. 

In accordance with these requirements, 

an EA must briefly discuss: (1) the need 

for the action; (2) the alternatives 

considered; (3) the environmental 

impacts of the action and alternatives; 

and (4) a listing of the agencies and 

persons consulted. If, after reviewing 

the EA and public comments if 


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60370 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

64See Docket No. PHMSA–2018–0025–0478. 

applicable, in response to a draft EA 

(DEA), an agency determines that a 

proposed action will not have a 

significant impact on the human or 

natural environment, it can conclude 

the NEPA analysis with a finding of no 

significant impact (FONSI). 

(1) The Need for the Action 

PHMSA has determined that the 

recommendations from the TRB, 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 July 2020 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 is 

amending 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 this rulemaking, PHMSA 

considered 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 § 173.319, which 

includes: 

Æ testing of relief valves every 5 years 

Æ annual replacement of rupture 

discs 

Æ thermal integrity tests following an 

average daily pressure rise during any 

shipment exceeding 3 psig per day 

Æ 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 § 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: 

Æ a reclosing pressure relief device 

with a start-to-discharge pressure of 75 

psig; 

Æ a non-reclosing pressure relief 

device set to discharge at the tank test 

pressure; 

Æ a maximum permitted filling 

density (percent by weight) of 37.3 

percent; 

Æ a design service temperature of 

¥162 °C (¥260 °F); 

Æ a maximum pressure when offered 

for transportation not to exceed 15 psig; 

Æ 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 

Æ an outer tank shell constructed of 

AAR TC–128, Grade B normalized steel 

plate as specified in § 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 final environmental analysis 

(FEA), which—except for the finding of 

no significant impact therein—is 

incorporated by reference into this final 

rule, 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.64 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 and Phase II 

Reports and results from ongoing, 

delayed testing and evaluation activity 

by the LNG Task Force. 

Selected Action Alternative 

This Selected Action Alternative as it 

appears in this final rule, adding 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 

science. Rail transport of LNG would be 

permitted only as authorized by the 

conditions of a PHMSA special permit 

(49 CFR 107.105) that would apply only 

to the railroad(s) operating under such 

a permit or in a portable tank secured 

to a rail car pursuant to the conditions 

of an FRA approval (49 CFR 174.63). 

The amendments included in this 

alternative are more fully discussed in 

the preamble and regulatory text 

sections of this final rule. 

(3) Probable Environmental Impacts of 

the Action and Alternatives 

No Action Alternative 

If PHMSA selected 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 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 

that the July 2020 Final Rule authorized 

large quantities to be transported in rail 

cars. The July 2020 Final Rule FEA 


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65See, 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/statealaska-and-fairbanks-north-star-borough-receive147-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.’’). 

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 final 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/incidents, 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 ambienttemperature 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 on the July 2020 

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 July 2020 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.65 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 July 2020 Final 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 abovedescribed 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. 

Selected Action Alternative 

Under this Selected Action 

Alternative, PHMSA will 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, 2025, 

whichever is earlier. Therefore, the 

HMR will not authorize shippers to 

transport bulk quantities of LNG by rail 

tank car. Instead, LNG by rail will only 

be permitted pursuant to a DOT SP or 

in portable tanks subject to FRA 

approval. The Selected Action 

Alternative will 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 will be able to further consider 

whether the transportation of LNG 

could pose disproportionately high or 

adverse effects on minority and low 

income communities, which have 

historically borne the brunt of 

deleterious Federal policy decisions. 

PHMSA will also be able to further 

consider whether shipping LNG in rail 

tank cars is consistent with public 

health and safety, environmental 

protection, including 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. 

However, as noted above and in the 

FEA for the July 2020 Final Rule, the 

authorization to transport LNG in DOT– 

113C120W9 specification tank cars 

could have yielded some environmental 

benefits or improvements, which will 

not be realized during the suspension 

period. The scope of potential 

environmental effects of suspending the 

July 2020 Final Rule depend on whether 

use of MC–338 for transportation of 

LNG increases as a result of the 

suspension of the DOT–113C120W9 or 

whether environmental benefits of the 

authorization have been realized that 

would not occur during the suspension. 

PHMSA is unaware of any order from a 

commercial entity for a new DOT– 

113C120W9-specification tank car for 

LNG service. Thus, no increased use of 

MC–338 tank cars for LNG service is 

expected as a result of this suspension. 

In the unlikely event that the use of 

MC–338 cargo tank cars for LNG 

transportation increases due to the 

inability to transport LNG in rail tank 

cars, a few environmental effects could 

result. First, highway transportation of 

LNG requires more diesel engine 

vehicles and would result in more 

emissions, including volatile organic 

compounds, carbon dioxide, nitrogen 


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66 59 FR 7629 (Feb. 11, 1994). 

67 88 FR 25251 (Apr. 21, 2023). Executive Order 

14096 supplemented the efforts of Executive Order 

12898. 

68 65 FR 19475 (Apr. 11, 2000). 

69 77 FR 26413 (May 4, 2012). 

oxides, sulfur oxides, and particulate 

matter of 10 microns or less. Next, 

increased highway congestion also 

increases the potential for a highway 

incident involving LNG, depending on 

the extent of the increase. In the event 

highway transportation increases as a 

result of this rule, these environmental 

effects would be speculative and minor, 

and PHMSA finds that they are 

warranted during the suspension period 

while PHMSA undertakes a full analysis 

of risks inherent in transporting LNG in 

rail tank cars. 

The July 2020 Final Rule FEA noted 

that the transportation of LNG could 

allow natural gas to reach markets that 

lack this access and could potentially 

reduce and replace the burning of more 

polluting and carbon-intensive sources 

of energy such as coal, wood, and 

diesel. As noted above, the July 2020 

Final Rule has not resulted in these 

replacements or emissions reductions, 

such that the suspension would not 

reverse any such benefits. The July 2020 

Final Rule FEA also explained that 

authorization to transport LNG in rail 

tank cars had the potential to reduce the 

wasteful and carbon-intensive practice 

of natural gas flaring because it could 

provide a market for by-product natural 

gas in areas where natural gas pipeline 

transportation is not available. The July 

2020 Final Rule has not resulted in this 

benefit, and there is no indication that 

this benefit would have occurred 

anytime in the foreseeable future in the 

event that it remained available. Thus, 

PHMSA does not anticipate negative 

environmental effects from the 

suspension of the July 2020 Final Rule. 

(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 rule. 

The final rule has also been made 

available to other Federal agencies 

within the interagency review process 

contemplated under Executive Order 

12866. 

(5) Environmental Justice 

Executive Order 12898 (‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’’),66 directs 

Federal agencies to take appropriate and 

necessary steps to identify and address 

disproportionately high and adverse 

effects of Federal actions on the health 

or environment of minority and lowincome populations to the greatest 

extent practicable and permitted by law. 

DOT Order 5610.2C (‘‘U.S. Department 

of Transportation Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’) establishes departmental 

procedures for effectuating Executive 

Order 12898 promoting the principles of 

environmental justice through full 

consideration of environmental justice 

principles throughout planning and 

decision-making processes in the 

development of programs, policies, and 

activities—including PHMSA 

rulemaking. 

PHMSA has evaluated this final rule 

under DOT Order 5610.2C and 

Executive Order 12898 and has 

determined it will not cause 

disproportionately high and adverse 

human health and environmental effects 

on minority and low-income 

populations. The final rule is national in 

scope; it is neither directed toward a 

particular population, region, or 

community, nor is it expected to result 

in any adverse environmental or health 

impact to any particular population, 

region, or community. 

This final rule could reduce risks to 

minority populations, low-income 

populations, or other underserved and 

disadvantaged communities. Insofar as 

these HMR amendments could avoid the 

release of hazardous materials, the final 

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 July 2020 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, 

these HMR amendments could increase 

risks to environmental justice 

communities in the vicinity of those 

highways. 

Further, this rule advances the policy 

goals of the most recent environmental 

justice Executive Order 14096— 

Revitalizing Our Nation’s Commitment 

to Environmental Justice for All,67

which deepens the Administration’s 

whole-of-government approach to 

environmental justice to better protect 

communities from pollution and other 

environmental justice concerns. 

(6) Finding of No Significant Impact 

The adoption of the Selected Action 

Alternative’s suspension will 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, the HMR amendments in this final 

rule will have no significant impact on 

the human environment. The Selected 

Action Alternative will 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 finds that codification and 

implementation of this rule will not 

result in a significant impact to the 

human environment. 

I. 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 on 

DOT’s website at http://www.dot.gov/ 

privacy or DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000.68

J. Executive Order 13609 and 

International Trade Analysis 

Executive Order 13609 (‘‘Promoting 

International Regulatory 

Cooperation’’) 69 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 

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 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60373 

70 66 FR 28355 (May 22, 2001). 

71 86 FR 26633 (May 17, 2021). 

72TSA, Security Directive No. 1580/82–2022–01, 

‘‘Rail Cybersecurity Mitigation Actions and 

Testing’’ (Oct. 24, 2022). 

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. 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 

suspension 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 is 

amending 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. 

K. Executive Order 13211 

Executive Order 13211 (‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’) 70 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 action. 

Although this rule is a significant 

action under Executive Order 12866, 

PHMSA expects it to have an annual 

effect on the economy of less than $200 

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 

amendment 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 section IV.B above. 

L. Cybersecurity and Executive Order 

14028 

Executive Order 14028 (‘‘Improving 

the Nation’s Cybersecurity’’) 71 directed 

the Federal government to improve its 

efforts to identify, deter, and respond to 

‘‘persistent and increasingly 

sophisticated malicious cyber 

campaigns.’’ Consistent with Executive 

Order 14028, the Transportation 

Security Administration (TSA) in 

October 2022 issued a Security Directive 

to reduce the risk that cybersecurity 

threats pose to critical railroad 

operations and facilities through 

implementation of layered cybersecurity 

measures that provide defense-indepth.72 PHMSA has considered the 

effects of the final rule and determined 

that its regulatory amendments will not 

materially affect the cybersecurity risk 

profile for rail transportation of 

hazardous materials. 

List of Subjects in 49 CFR Part 172 

Education, Hazardous materials 

transportation, Hazardous waste, 

Labeling, Markings, Packaging and 

containers, Reporting and recordkeeping 

requirements. 

In consideration of the foregoing, 

PHMSA is amending 49 CFR chapter I 

as follows: 

PART 172—HAZARDOUS MATERIALS 

TABLE, SPECIAL PROVISIONS, 

HAZARDOUS MATERIALS 

COMMUNICATIONS, EMERGENCY 

RESPONSE INFORMATION, TRAINING 

REQUIREMENTS, AND SECURITY 

PLANS 

■ 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. 

■ 2. In § 172.101, amend the § 172.101 

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: 

§ 172.101 Purpose and use of the 

hazardous materials table. 

* * * * * 


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60374 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations § 172.101 HAZARDOUS

MATERIALS

TABLE

Symbols Hazardous materials descriptions and proper shipping names Hazard class or division Identification Nos. PG Label codes Special provisions (§ 172.102) 

(8) (9) (10) 

Packaging 

(§ 173.***) 

Quantity limitations 

(see §§ 173.27 and 175.75) 

Vessel stowage 

Exceptions Non-bulk Bulk Passenger aircraft/rail Cargo aircraft only Location Other 

(1) (2) (3) (4) (5) (6) (7) (8A) (8B) (8C) (9A) (9B) (10A) (10B) 

*******

Methane, refrigerated liquid (cryogenic liquid) or Natural gas, refrigerated liquid (cryogenic liquid, 

with high methane content).

2.1 UN1972 ........ 2.1 .... T75, TP5, 439, 440 None .......... None .......... 318, 319 ..... Forbidden ... Forbidden ... D 40 

*******


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60375 

* * * * * 

■ 3. In § 172.102, amend paragraph 

(c)(1) by adding special provision 439 in 

numerical order to read as follows: 

§ 172.102 Special provisions. 

* * * * * 

(c) * * * 

(1) * * * 

439 UN1972 is not authorized for 

transportation by rail tank car until 

either issuance of a final rule 

concluding the rulemaking action 

proceeding under RIN 2137–AF54, or 

June 30, 2025, 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 August 23, 

2023, under authority delegated in 49 CFR 

1.97. 

Tristan H. Brown, 

Deputy Administrator, Pipeline and 

Hazardous Materials Safety Administration. 

[FR Doc. 2023–18569 Filed 8–31–23; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 20 

[Docket No. FWS–HQ–MB–2022–0090; 

FF09M32000–234–FXMB1231099BPP0] 

RIN 1018–BF64 

Migratory Bird Hunting; Migratory 

Game Bird Hunting Regulations on 

Certain Federal Indian Reservations 

and Ceded Lands 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: As part of the rulemaking 

process for the 2023–2024 season for 

migratory game bird hunting, the U.S. 

Fish and Wildlife Service (hereinafter, 

Service or we) has revised the process 

for establishing regulations for certain 

Tribes on Federal Indian reservations, 

off-reservation trust lands, and ceded 

lands. The Service recognizes Tribal 

treaty rights and the reserved hunting 

rights and management authority of 

Indian Tribes and seeks to strengthen 

Tribal sovereignty. We will no longer 

require that Tribes annually submit a 

proposal to the Service for our review 

and approval and no longer publish in 

the Federal Register the annual Tribal 

migratory bird hunting regulations. 

Instead, the regulations now include 

elements of our current guidelines for 

establishing migratory game bird 

hunting regulations on Federal Indian 

reservations (including off-reservation 

trust lands) and ceded lands. Since 

1985, Tribal migratory bird harvest has 

been small with negligible impact to 

bird population status, and we 

anticipate that Tribal hunting of 

migratory birds will continue to have 

similar negligible impacts to bird 

populations in the future. This rule will 

reduce administrative burdens on both 

the Tribes and the Service while 

continuing to sustain healthy migratory 

game bird populations for future 

generations. 

DATES: This rule takes effect September 

1, 2023. 

ADDRESSES: You may inspect comments 

received on the migratory bird hunting 

regulations at https://

www.regulations.gov at Docket No. 

FWS–HQ–MB–2022–0090. You may 

obtain copies of referenced reports from 

the Division of Migratory Bird 

Management’s website at https://

www.fws.gov/program/migratory-birds 

or at https://www.regulations.gov at 

Docket No. FWS–HQ–MB–2022–0090. 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, U.S. Fish and Wildlife 

Service, Department of the Interior, 

(703) 358–2606. Individuals in the 

United States who are deaf, deafblind, 

hard of hearing, or have a speech 

disability may dial 711 (TTY, TDD, or 

TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point of 

contact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

Migratory game birds are those bird 

species so designated in conventions 

between the United States and several 

foreign nations for the protection and 

management of these birds. Under the 

Migratory Bird Treaty Act (16 U.S.C. 

703–712), the Secretary of the Interior is 

authorized to determine when ‘‘hunting, 

taking, capture, killing, possession, sale, 

purchase, shipment, transportation, 

carriage, or export of any such bird, or 

any part, nest, or egg’’ of migratory game 

birds can take place and to adopt 

regulations for this purpose. These 

regulations must give due regard to the 

zones of temperature and to the 

distribution, abundance, economic 

value, breeding habits, and times and 

lines of migratory flight of such birds 

(16 U.S.C. 704(a)). The Secretary of the 

Interior has delegated to the Service the 

lead Federal responsibility for managing 

and conserving migratory birds in the 

United States; however, migratory bird 

management is a cooperative effort of 

Federal, Tribal, and State governments. 

Federal regulations pertaining to 

migratory bird hunting are located in 

title 50 of the Code of Federal 

Regulations in part 20. 

Acknowledging regional differences 

in hunting conditions, the Service has 

administratively divided the United 

States into four Flyways for the primary 

purpose of managing migratory game 

birds. Each Flyway (Atlantic, 

Mississippi, Central, and Pacific) has a 

Flyway Council, a formal organization 

generally composed of one member 

from each State within the Flyway, as 

well as Provinces in Canada that share 

migratory bird populations with the 

Flyway. The Flyway Councils, 

established through the Association of 

Fish and Wildlife Agencies, assist in 

researching and providing migratory 

game bird management information for 

Federal, Tribal, State, and Provincial 

governments, as well as private 

conservation entities and the general 

public. 

The Service annually develops 

migratory game bird hunting outside 

limits (hereinafter, Federal outside 

limits or Federal limits) for season 

dates, season lengths, shooting hours, 

bag and possession limits, and areas 

where migratory game bird hunting may 

occur. Hunting seasons selected by the 

States and Tribes within these Federal 

limits are set forth in regulations at 50 

CFR part 20, subpart K. Because the 

Service is required to take abundance of 

migratory game birds and other factors 

into consideration, the Service 

undertakes several surveys throughout 

the year in conjunction with Service 

Regional Offices, the Canadian Wildlife 

Service, Tribes, and State and Provincial 

wildlife management agencies. For each 

annual regulatory cycle, Service 

biologists gather, analyze, and interpret 

biological survey data and provide this 

information through a series of 

published status reports and 

presentations to the Flyway Councils 

and other interested parties. The August 

6, 2015, Federal Register at 80 FR 47388 

provides a detailed overview of this 

process. 

The Federal outside limits are 

necessary to allow harvest at levels 

compatible with migratory game bird 

population status and habitat 

conditions. To determine the 

appropriate outside limits for each 

species, we consider factors such as 

population size and trend, geographical 

distribution, annual breeding effort, 

condition of breeding and wintering 


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