Hazardous Materials: Revisions to Hazardous Materials Grants Requirements (RRR), 70067-70074 [2016-24418]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 196 (Tuesday, October 11, 2016)]
[Proposed Rules]
[Pages 70067-70074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24418]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 110

[Docket No. PHMSA-2015-0272 (HM-209A)]
RIN 2137-AF19


Hazardous Materials: Revisions to Hazardous Materials Grants 
Requirements (RRR)

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes to revise its regulations pertaining to the 
Hazardous Materials grants program to incorporate the Office of 
Management and Budget's Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards, and to implement 
new requirements set forth by the Fixing America's Surface 
Transportation (FAST) Act of 2015. PHMSA invites all interested persons 
to provide comments regarding these intended revisions.

DATES: Comments must be received by December 12, 2016. To the extent 
possible, PHMSA will consider late-filed comments as a final rule is 
developed.

ADDRESSES: You may submit comments by identification of the docket 
number PHMSA-2015-0272 (HM-209A) using the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. To avoid 
duplication, please use only one of these four methods. All comments 
received will be posted without change to https://www.regulations.gov 
and will include any personal information you provide. All comments 
received will also be posted without change to the Federal Docket 
Management System (FDMS), including any personal information provided.
    Docket: For access to the dockets to read background documents or 
comments received, go to https://www.regulations.gov or contact DOT's 
Docket Operations Office (see mail and hand delivery addresses above).
    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 www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Lisa O'Donnell, Outreach, Training and 
Grants Division, Office Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey

[[Page 70068]]

Avenue SE., Washington, DC 20590 or at (202) 366-1109.

SUPPLEMENTARY INFORMATION: 

Table of Contents of Supplementary Information

I. Background
    A. Hazardous Materials Emergency Preparedness Grant
    B. Supplemental Public Sector Training Grant
    C. Hazardous Materials Instructor Training Grant
    D. Hazardous Materials Community Safety Grant
    E. New Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards
    F. Gap in Regulations Pertaining to Hazardous Materials Grants
II. Summary Review of Proposed Amendments
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for this Rulemaking
    B. Executive Order 12866, Executive Order 13563, Executive Order 
13610, and DOT Regulatory Policies and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act of 1995
    I. Environmental Assessment and Finding of No Significant Impact
    J. Privacy Act
    K. Executive Order 13609 and International Trade Analysis
    L. National Technology Transfer and Advancement Act
    M. Executive Order 13211

I. Background

    This proposed rule revises 49 CFR part 110 pertaining to the 
Hazardous Materials grants program to incorporate the Office of 
Management and Budget's Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards (2 CFR 200), and 
to implement new requirements set forth by the Fixing America's Surface 
Transportation (FAST) Act of 2015 (Pub.L. 114-94--December 4, 2015).
    PHMSA's Hazardous Materials grants program is comprised of four 
grants: Hazardous Materials Emergency Preparedness (HMEP) grants; 
Supplemental Public Sector Training (SPST) grants; Hazardous Materials 
Instructor Training (HMIT) grants; and the new Hazardous Materials 
Community Safety (HMCS) grants. Except for the HMCS grants, the HMEP, 
SPST, and HMIT grants are funded by registration fees collected from 
hazardous materials (hazmat) shippers and carriers who offer for 
transportation or transport certain hazmat in intrastate, interstate, 
or foreign commerce in accordance with 49 CFR part 107, subpart G.
    As a result of the implementation of 2 CFR part 200 and the FAST 
Act, the current regulations for the Hazardous Materials grants are 
outdated. The following describes each of the hazmat grants, new 
requirements for Federal awards, and the gaps in current regulations 
(49 CFR part 110).

A. Hazardous Materials Emergency Preparedness Grant

    The HMEP grant was established in 1990 by the Hazardous Materials 
Transportation Uniform Safety Act (HMTUSA), Public Law 101-615. In 
1993, PHMSA's predecessor, the Research and Special Programs 
Administration, began issuing grants to assist States, Territories, and 
Indian tribes to carry out emergency preparedness and training 
activities to ensure communities could effectively respond to 
transportation incidents involving hazmat. The HMEP grant award amount 
prior to 2009 was $12.8 million; award amounts thereafter were 
increased to $21.8 million.

B. Supplemental Public Sector Training Grant

    The Hazardous Materials Transportation Act Amendments of 1993, 
which among other changes, established the SPST grant to increase the 
number of hazardous materials training instructors available to conduct 
hazardous materials response training for individuals with a statutory 
responsibility to respond to hazardous materials accidents and 
incidents. From 2002 through 2008, the SPST grant authorization amount 
was $250,000. In fiscal year 2008, the SPST grant authorization amount 
was increased to $1 million annually.

C. Hazardous Materials Instructor Training Grant

    The Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005, which among other changes, established the 
HMIT grant for training instructors to train hazardous materials 
employees. Instructors trained under this program are able to offer 
training to hazardous materials employees at locations in close 
proximity to the employees' places of employment. Since its inception 
in 2008, the HMIT grant program has awarded approximately $4 million in 
grant funds annually to nonprofit organizations.

D. Hazardous Materials Community Safety Grant

    On December 4, 2015, President Obama signed into law the FAST Act, 
which among other changes, established the HMCS grant to nonprofit 
organizations for: (1) Conducting national outreach and training 
programs to assist communities in preparing for and responding to 
accidents and incidents involving the transportation of hazardous 
materials, including Class 3 flammable liquids by rail; and (2) 
training State and local personnel responsible for enforcing the safe 
transportation of hazardous materials, including Class 3 flammable 
liquids. Unlike the other three grants, which are funded through a 
shipper and carrier hazardous materials registration fee program, the 
HMCS grant funding source is up to $1 million in Congressional 
appropriations. PHMSA anticipates awarding two HMCS grants for the 
first time in fiscal year 2017.

E. New Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards

    On December 19, 2013, the Office of Management and Budget (OMB) 
published guidance that streamlined the Federal government's guidance 
on Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal awards. This final guidance, located in 2 CFR part 200, 
supersedes and simplifies requirements from various OMB circulars and 
49 CFR part 18. All Federal grants issued on or after December 26, 
2014, were required to comply with these requirements.

F. Gap in Regulations Pertaining to Hazardous Materials Grants

    The regulations in 49 CFR part 110 pertaining to Hazardous 
Materials grants have neither been updated to include reference to the 
HMIT, SPST, and HMCS grants to nonprofit entities, nor have they been 
updated to reflect the streamlined guidance for Federal awards found in 
2 CFR part 200.

II. Summary Review of Proposed Amendments

    PHMSA proposes to revise the regulations pertaining to Hazardous 
Materials grants in 49 CFR part 110 to bring it into alignment with the 
currently applicable Federal law and regulation (e.g., FAST Act and 2 
CFR part 200). We propose to amend Part 110 to add language pertaining 
to grants made to nonprofit organizations under the HMIT, SPST, and 
HMCS grants. These training grants to nonprofit organizations are 
provided in statute but are not included in 49 CFR. We propose

[[Page 70069]]

to remove reference to 49 CFR part 18 and replace it with reference to 
2 CFR part 200, as 49 CFR part 18 has been removed and 2 CFR part 200 
provides the Uniform Administrative Requirements for Federal grants. 
Further, PHMSA proposes to add a reference to pre-award expenditures, 
add a reference to territories, define ``nonprofit organizations,'' and 
require that applicants and grantees submit documents electronically 
rather than by mail.
    This NPRM affects the following entities, as listed in Table 1:

                                           Table 1--Affected Entities
----------------------------------------------------------------------------------------------------------------
                             Affected entities                                            Revisions
----------------------------------------------------------------------------------------------------------------
 States, Territories, and Indian tribes............................   Subject to 2 CFR Part 200
 National nonprofit fire service organizations.....................   and electronic filing
 Nonprofit organizations that demonstrate expertise in (1)            requirements.
 conducting a training program for hazardous materials employees; and (2)
 the ability to reach and involve in a training program a target population
 of hazardous materials employees.
 Nonprofit organizations that demonstrate expertise in conducting
 national outreach and training programs to assist communities in preparing
 for and responding to accidents and incidents involving the transportation
 of hazardous materials, including Class 3 flammable liquids by rail.
 Nonprofit organizations that demonstrate expertise in training
 State and local personnel responsible for enforcing the safe
 transportation of hazardous materials, including Class 3 flammable liquids.
----------------------------------------------------------------------------------------------------------------

    PHMSA seeks comments from interested stakeholders on this proposed 
rulemaking. PHMSA proposes the following substantive revisions:
     Revise Sec.  110.1 to comport with 2 CFR part 200 
provisions regarding payments to non-Federal entities. 2 CFR 200.305 
states that non-Federal entities other than states ``must be paid in 
advance, provided it maintains or demonstrates the willingness to 
maintain both written procedures that minimize the time elapsing 
between the transfer of funds and disbursement by the non-Federal 
entity, and financial management systems that meet the standards for 
fund control and accountability as established in this Part'' (i.e., 
high-risk grantees). Additionally, while 2 CFR part 200 is silent 
regarding the funding techniques for states, advanced payments (as 
conditioned therein) to state grantees would likewise more effectively 
focus Federal resources on improving performance and outcomes while 
ensuring the financial integrity of taxpayer dollars in partnership 
with non-Federal stakeholders.
     Allow for grantees to incur pre-award expenditures at 
their own risk in Sec.  110.50, Disbursement of Federal funds.
    PHMSA proposes the following additional revisions:
     Revise Sec.  110.1 to refer to nonprofit organizations. 
Currently, HMIT, SPST, and HMCS grant programs, where nonprofit 
organizations are eligible applicants, are not referenced in the 
regulations.
     Revise Sec.  110.5 to refer to nonprofit organizations and 
replace reference to 49 CFR with reference to 2 CFR part 200.
     Revise Sec.  110.10 to amend the title to read 
``Administering Hazardous Materials Grants'' and to add ``Territories'' 
and ``nonprofit organizations.''
     Revise Sec.  110.20 to change the preamble language to 
refer to 2 CFR part 200; revise the definitions for ``Indian tribe'' 
and ``Associate Administrator''; add definitions for ``Nonprofit 
organization,'' ``Public sector employee,'' ``Tribal Emergency Planning 
Committee,'' and ``Tribal Emergency Response Commission''; and delete 
the definition for ``Indian country.''
     Amend Sec.  110.30 to revise paragraph (a) and remove 
paragraphs (b) and (c) to update how applicants submit grant 
applications to PHMSA.
     Amend the heading of Sec.  110.40 by adding the 
terminology ``Hazardous Materials Emergency Preparedness Grant'' and 
update the wording in paragraphs (a) and (b).
     Revise the requirements in Sec. Sec.  110.10, 110.20, 
110.30, 110.70, 110.80, 110.90, 110.100, and 110.110 by updating the 
sections to refer to 2 CFR part 200 and making other editorial changes.
     Revise the requirements in Sec.  110.30 by removing 
reference to corresponding with PHMSA by mail.
     Revise the requirements in Sec.  110.70 by removing 
reference to financial management systems and advances.
     Revise the requirements in Sec.  110.90 by removing the 
examples of project manager requirements, which have a significant 
impact on the planning and training activities.
     Revise the requirements in Sec.  110.120 to update how to 
report deviations.
     Revise the requirements in Sec.  110.130 referring to 
disputes by updating the titles of the PHMSA Hazardous Materials grants 
staff and changing the dispute resolution officer from the 
Administrator to the Associate Administrator to expedite dispute 
resolutions should disputes occur.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under the authority of the Federal hazardous 
materials transportation law, 49 U.S.C. 5101 et seq. Section 5103(b) 
authorizes the Secretary to prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. Section 5107, as amended, 
establishes a competitive program for making grants to nonprofit 
organizations for conducting national outreach and training programs to 
assist communities in preparing for and responding to accidents and 
incidents involving the transportation of hazardous materials, 
including Class 3 flammable liquids by rail; and training State and 
local personnel responsible for enforcing the safe transportation of 
hazardous materials, including Class 3 flammable liquids. Section 5108 
permits the Secretary to collect registration fees from people 
transporting certain quantities of hazardous materials and deposit 
those fees into an account used to fund the HMEP grants program. 
Section 5116, as amended, authorizes the Secretary to make grants to 
States and Indian tribes, by combining planning and training grants, 
and to create supplemental training grants to national nonprofit fire 
service organizations. This NPRM revises the regulations as they 
pertain to hazardous materials grants.

[[Page 70070]]

B. Executive Order 12866, Executive Order 13563, Executive Order 13610, 
and DOT Regulatory Policies and Procedures

    This NPRM is considered a non-significant regulatory action under 
Executive Order 12866 (``Regulatory Planning and Review'') and the 
Regulatory Policies and Procedures of the Department of Transportation 
(44 FR 11034) as it does not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; rather, it revises regulations to 
comply with current Federal statute and guidance and PHMSA policies and 
procedures.
    Executive Order 13563 (``Improving Regulation and Regulatory 
Review'') supplements and reaffirms the principles, structures, and 
definitions governing regulatory review that were established in 
Executive Order 12866 of September 30, 1993. Executive Order 13563, 
issued January 18, 2011, notes that our nation's current regulatory 
system must protect not only public health, welfare, safety, and our 
environment but also promote economic growth, innovation, 
competitiveness, and job creation. Further, this executive order urges 
government agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public. 
In addition, Federal agencies are asked to periodically review existing 
significant regulations; retrospectively analyze rules that may be 
outmoded, ineffective, insufficient, or excessively burdensome; and 
modify, streamline, expand, or repeal regulatory requirements in 
accordance with what has been learned.
    Executive Order 13610 (``Identifying and Reducing Regulatory 
Burdens''), issued May 10, 2012, urges agencies to conduct 
retrospective analyses of existing rules to examine whether they remain 
justified and whether they should be modified or streamlined in light 
of changed circumstances, including the rise of new technologies.
    Together, these three Executive Orders require agencies to regulate 
in the ``most cost-effective manner,'' to make a ``reasoned 
determination that the benefits of the intended regulation justify its 
costs,'' and to develop regulations that ``impose the least burden on 
society.''
    PHMSA has evaluated the Hazardous Materials Grants regulations and 
has determined that they are outmoded and, in part, excessively 
burdensome. The current regulations are out-of-date, as they refer to 
obsolete regulations, and have been superseded by 2 CFR part 200. We 
propose updating the 49 CFR part 110 to reflect current Federal statute 
and guidance and PHMSA policies and procedures. PHMSA welcomes public 
comments on potential costs and benefits of this regulatory action.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism'') and the President's memorandum on ``Preemption'' 
published in the Federal Register on May 22, 2009 (74 FR 24693). This 
proposed rule will preempt State, local, and Indian tribe requirements 
but does not propose any regulation that has substantial direct effects 
on the States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125 (b)) 
that preempts State, local, and Indian tribe requirements on the 
following subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials 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, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This proposed rule pertains to entities responsible for all the 
covered subject areas above. If adopted as final, this rule will 
preempt any State, local, or Indian tribe, requirements concerning 
these subjects unless the non-Federal requirements are ``substantively 
the same'' as the Federal requirements. Furthermore, this proposed rule 
is necessary to update, clarify, and provide relief from regulatory 
requirements.
    The Federal hazardous materials transportation law provides at 
Sec.  5125(b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, they must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
the final rule and not later than two years after the date of issuance. 
PHMSA has determined that the effective date of Federal preemption for 
these requirements will be one year from the date of publication of a 
final rule in the Federal Register.

D. Executive Order 13175

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this NPRM does 
not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. There are 
no known costs to small entities associated with this rule. The changes 
proposed herein are to clarify and simplify existing regulations and to 
comply with the current statute. The grant recipients affected by this 
rulemaking are States, Territories, Indian Tribes, and nonprofit 
organizations. Current grantees that meet the definition of `small 
entity' are nonprofit organizations. All of these entities currently 
comply with the statutory requirements that PHMSA is proposing to 
incorporate in the regulations; therefore, there is no added burden. 
Consequently, PHMSA certifies that this rulemaking does not have a 
significant economic impact on a substantial number of small entities.

F. Paperwork Reduction Act

    PHMSA currently has an approved information collection under OMB 
Control Number 2137-0586, entitled ``Hazardous Materials Public Sector 
Training & Planning Grants,'' with an expiration date of June 29, 2019. 
This NPRM may result in a minimal increase in the time spent to apply, 
maintain, and close out a grant application cycle; however, this 
minimal increase is not sufficient enough to necessitate the

[[Page 70071]]

revision of this information collection package, in either the annual 
burden or cost to OMB Control Number 2137-0586 for proposed changes 
under Part 110.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. 5 CFR 1320.8(d) requires that 
PHMSA provide interested members of the public and affected agencies an 
opportunity to comment on information and recordkeeping requests.
    PHMSA requests comments on any information collection and 
recordkeeping burdens associated with the proposed changes under this 
proposed rule.
    Requests for a copy of this information collection should be 
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.
    Address written comments to the Dockets Unit as identified in the 
ADDRESSES section of this rulemaking. We must receive comments 
regarding information collection burdens prior to the close of the 
comment period identified in the DATES section of this rulemaking. In 
addition, you may submit comments specifically related to the 
information collection burden to the PHMSA Desk Officer, Office of 
Management and Budget, at fax number (202) 395-6974.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$155 million or more, adjusted for inflation, to 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. As such, PHMSA has concluded that the NPRM does 
not require an Unfunded Mandates Act analysis.

I. Environmental Assessment and Finding of No Significant Impact

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), and implementing regulations by the Council on 
Environmental Quality (40 CFR part 1500) require Federal agencies to 
consider the consequences of Federal actions and prepare a detailed 
statement on actions that significantly affect the quality of the human 
environment.
    This NPRM would revise the regulations pertaining to Hazardous 
Materials Grants to reflect current Federal statute and guidance and 
PHMSA policies and procedures. PHMSA believes the proposed revisions 
present little or no environmental impact on the quality of the human 
environment because rather than involving the transportation of 
hazardous materials, the changes update processes and procedures 
related to grants. Therefore, PHMSA has initially determined that the 
implementation of the proposed rule will not have any significant 
impact on the quality of the human environment.
    In addition, PHMSA sought comment from the following modal 
partners:

     Federal Aviation Administration
     Federal Motor Carrier Safety Administration
     Federal Railroad Administration
     United States Coast Guard

    PHMSA did not receive any adverse comments on the amendments 
proposed in this NPRM from these Federal Agencies.
    PHMSA welcomes any views, data, or information related to 
environmental impacts that may result if the proposed requirements are 
adopted, as well as possible alternatives and the environmental 
impacts.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78), which may be 
viewed at: https://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf, 
or you may visit https://www.dot.gov.

K. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609 (``Promoting International Regulatory 
Cooperation''), 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 that 
are or will be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public. We have assessed 
the effects of the proposed rule, and find that it will not cause 
unnecessary obstacles to foreign trade. Accordingly, this NPRM is 
consistent with Executive Order 13609 and PHMSA's obligations under the 
Trade Agreement Act, as amended.

L. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs Federal agencies to use voluntary consensus 
standards in their regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g. specification of 
materials, test methods, or performance requirements) that are 
developed or adopted by voluntary consensus standard bodies. This 
proposed rulemaking is to comply with current Federal statute and 
guidance and PHMSA policies and procedures; it does not involve 
technical standards.

[[Page 70072]]

M. Executive Order 13211

    Executive Order 13211 (``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'') requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action'' (66 FR 28355, May 22, 2001). Under the 
Executive Order, a ``significant energy action'' is defined 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 (including a notice of inquiry, advance NPRM, and 
NPRM) 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; or (2) is designated by the Administrator of the Office of 
Information and Regulatory Affairs as a significant energy action.
    PHMSA has evaluated this action in accordance with Executive Order 
13211. See the environmental assessment section for a more thorough 
discussion of environmental impacts and the supply, distribution, or 
use of energy. PHMSA has determined that this action will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, PHMSA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

List of Subjects in 49 CFR Part 110

    Disaster assistance, Education, Grant programs--environmental 
protection, Grant programs--Indians, Hazardous materials 
transportation, Hazardous substances, Indians, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, 49 CFR chapter I is proposed to 
be amended as follows:

PART 110--HAZARDOUS MATERIALS PUBLIC SECTOR TRAINING AND PLANNING 
GRANTS

0
1. The authority citation for part 110 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.97.
0
2. Revise Sec.  110.1 to read as follows:


Sec.  110.1  Purpose.

    This part sets forth procedures for grants to States, Territories, 
Indian Tribes, and nonprofit organizations to support emergency 
planning and training to respond to hazardous materials emergencies, 
particularly those involving transportation. These grants may also be 
used to enhance the implementation of the Emergency Planning and 
Community Right-to-Know Act of 1986 (42 U.S.C. 11001).
0
3. Revise Sec.  110.5 to read as follows:


Sec.  110.5  Scope.

    (a) This part applies to:
    (1) States and Indian tribes and contains the program requirements 
for public sector grants to support hazardous materials emergency 
planning and training efforts; and
    (2) Nonprofit organizations for grants to support training programs 
for public sector hazardous materials emergency responders or hazardous 
materials employees.
    (b) The requirements contained in 2 CFR part 200 ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements,'' 
apply to grants issued under this Part.
    (c) Copies of standard forms and OMB circulars referenced in this 
Part are available at https://www.whitehouse.gov/omb/grants_forms or 
from the Office of Hazardous Materials Safety, Grants Chief, Pipeline 
and Hazardous Materials Safety Administration, U.S. Department of 
Transportation, East Building, 1200 New Jersey Avenue SE., Washington 
DC 20590-0001.
0
4. Revise Sec.  110.10 to read as follows:


Sec.  110.10  Administering hazardous materials grants.

    This part applies to States, Territories, Indian tribes and 
nonprofit organizations.
0
5. Revise Sec.  110.20 to read as follows:


Sec.  110.20  Definitions.

    Unless defined in this part, all terms defined in 49 U.S.C. 5102 
are used in their statutory meaning and all terms defined in 2 CFR part 
200 with respect to administrative requirements for grants, are used as 
defined therein. Other terms used in this part are defined as follows:
    Allowable costs means those costs that are: Eligible, reasonable, 
necessary, and allocable to the project permitted by the appropriate 
Federal cost principles, and approved in the grant.
    Associate Administrator means the Associate Administrator for 
Hazardous Materials Safety, Pipeline and Hazardous Materials Safety 
Administration or a person designated by the Associate Administrator.
    Budget period means the period of time specified in the grant 
agreement during which the project manager may expend or obligate 
project funds.
    Cost review means the review and evaluation of costs to determine 
reasonableness, allocability, and allowability.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 
1601 et seq.], which is recognized as eligible for the special programs 
and services provided by the United States to Indians because of their 
status as Indians (25 U.S.C. 450b).
    Local Emergency Planning Committee (LEPC) means a committee 
appointed by the State Emergency Response Commission under section 
301(c) of the Emergency Planning and Community Right-to-Know Act of 
1986 (42 U.S.C. 11001(c)) that includes at a minimum, representatives 
from each of the following groups or organizations: elected State and 
local officials; law enforcement, firefighting, civil defense, first 
aid, health, local environmental, hospital, and transportation 
personnel; broadcast and print media; community groups; and owners and 
operators of facilities subject to the emergency planning requirements.
    National curriculum means the curriculum required to be developed 
under 49 U.S.C. 5115 and necessary to train public sector emergency 
response and preparedness teams, enabling them to comply with 
performance standards as stated in 49 U.S.C. 5115(c).
    Nonprofit organization means a tax-exempt nonprofit organization in 
the U.S. as defined in 26 U.S.C. 501(c).
    Political subdivision means a county, municipality, city, town, 
township, local public authority (including any public and Indian 
housing agency under the United States Housing Act of 1937 (42 U.S.C. 
1401 et seq.), school district, special district, intrastate district, 
council of governments (whether or not incorporated as a nonprofit 
corporation under State law), any other regional or interstate 
government entity, or any agency or instrumentality of a local 
government.
    Project means the activities and tasks identified in the grant 
agreement.
    Project manager means the nonprofit, State or Indian tribal 
official designated in a grant as the recipient agency's principal 
program contact with the Federal Government.
    Project officer means the Federal official designated in a grant as 
the program contact with the project manager. The project officer is 
responsible for monitoring the project.
    Project period means the length of time specified in a grant for 
completion of all work associated with that project.
    Public sector employee means an individual employed by a State,

[[Page 70073]]

political subdivision of a State, or Indian tribe and who during the 
course of employment has responsibilities related to responding to an 
accident or incident involving the transportation of hazardous 
material, including an individual employed by a State, political 
subdivision of a State, or Indian tribe as a firefighter or law 
enforcement officer and an individual who volunteers to serve as a 
firefighter for a State, political subdivision of a State, or Indian 
tribe.
    State Emergency Response Commission (SERC) means the State 
Emergency Response Commission appointed by the Governor of each State 
and Territory under the Emergency Planning and Community Right-to-Know 
Act of 1986.
    Statement of Work means that portion of a grant that describes the 
purpose and scope of activities and tasks to be carried out as part of 
the proposed project.
    Tribal Emergency Planning Committee (TEPC) means a committee 
established by the TERC in each tribal region. TEPCs have the same 
responsibilities as LEPCs in the tribal region.
    Tribal Emergency Response Committee (TERC) means the commission 
responsible for carrying out the provisions of EPCRA in the same manner 
as a State Emergency Response Commission (SERC) on federally recognized 
tribal lands.
0
6. Revise Sec.  110.30 to read as follows:


Sec.  110.30  Hazardous materials emergency preparedness grant 
application.

    (a) General. Applications must comply with the applicable Notice of 
Funding Announcements which will include or reference forms approved by 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act of 1980 (44 U.S.C. 3502). Applicants are required to electronically 
submit application packages to https://www.grants.gov/. Applications 
must adhere to the instructions outlined in the funding announcement 
and grant application kit.
    (b) [Reserved]
    (c) [Reserved]
0
7. Revise Sec.  110.40 to read as follows:


Sec.  110.40  Activities eligible for hazardous materials emergency 
preparedness grant funding.

    Eligible applicants may receive funding for the following 
activities:
    (a) To develop, improve, and implement emergency plans required 
under the Emergency Planning and Community Right-to-Know Act of 1986, 
as well as exercises that test the emergency plan. To enhance emergency 
plans to include hazard analysis, as well as response procedures for 
emergencies involving transportation of hazardous materials.
    (b) To determine flow patterns of hazardous materials within a 
State, between a State and another State or Tribal lands, and develop 
and maintain a system to keep such information current.
    (c) To determine the need for regional hazardous materials 
emergency response teams.
    (d) To assess local response capabilities.
    (e) To conduct emergency response drills and exercises associated 
with emergency preparedness plans.
    (f) To provide for technical staff to support the planning effort.
    (g) To train public sector employees to respond to accidents and 
incidents involving the transportation of hazardous material.
    (h) To determine the number of public sector employees employed or 
used by a political subdivision who need the proposed training and to 
select courses consistent with national consensus standards or the 
National Curriculum.
    (i) To deliver comprehensive preparedness and response training to 
public sector employees, which may include design and delivery of 
preparedness and response training to meet specialized needs, and 
financial assistance for trainees and for the trainers, if appropriate, 
such as tuition, travel expenses to and from a training facility, and 
room and board while at the training facility.
    (j) To deliver emergency response drills and exercises associated 
with training, a course of study, and tests and evaluation of emergency 
preparedness plans.
    (k) To pay expenses associated with training by a person (including 
a department, agency, or instrumentality of a State or political 
subdivision thereof, a territory, or an Indian Tribe) and activities 
necessary to monitor such training including, but not limited to 
examinations, critiques, and instructor evaluations.
    (l) To maintain staff to manage the training effort designed to 
result in increased benefits, proficiency, and rapid deployment of 
local and regional responders.
    (m) For additional activities the Associate Administrator deems 
appropriate to implement the scope of work for the proposed plan or 
project and approved in the grant.
0
8. Revise Sec.  110.50 to read as follows:


Sec.  110.50  Disbursement of Federal funds.

    (a) Pre-award costs. (1) Pre-award costs, as defined in 2 CFR 
200.458, are those incurred prior to the effective date of the Federal 
award directly pursuant to the negotiation and in anticipation of the 
Federal award where such costs are necessary for the efficient and 
timely performance of the scope of work. Such costs are allowable only 
to the extent that they would have been allowable if incurred after the 
date of the Federal award and only with the written approval of the 
Federal awarding agency. PHMSA expects the grantee to be fully aware 
that pre-award costs result in borrowing against future support and 
that such borrowing must not impair the grantee's ability to accomplish 
the project objectives in the approved time frame or in any way 
adversely affect the conduct of the project.
    (2) A grantee may, at its own risk, incur pre-award costs to cover 
costs up to 90 days before the beginning date of the initial budget 
period of a new or renewal award if such costs are necessary to conduct 
the project, and would be allowable under the grant if awarded.
    (3) The incurrence of pre-award costs in anticipation of a 
competing or non-competing award imposes no obligation on PHMSA for any 
of the following reasons:
    (i) the absence of appropriations;
    (ii) if an award is not subsequently made; or
    (iii) if an award is made for a lesser amount than the grantee 
anticipated.
    (b) Payment may not be made for a project plan unless approved in 
the grant award.
    (1) Payments to recipients shall follow the Federal guidelines 
outlined at 2 CFR Sec.  200.305.
    (2) If a recipient agency seeks additional funds, the supplemental 
amendment request will be evaluated on the basis of needs, performance, 
and availability of funds. An existing grant is not a commitment of 
future Federal funding.
0
9. Revise Sec.  110.70 to read as follows:


Sec.  110.70  Financial administration.

    (a) Recipients must expend and account for grant funds in 
accordance with the standards for financial and program management of 
Federal grants outlined at 2 CFR 200.302.
    (b) To be allowable, costs must be eligible, reasonable, necessary, 
and allocable to the approved project in accordance with 2 CFR part 
200, subpart E, Cost Principles, and included in the grant award. 
Recipients are responsible for obtaining audits in accordance with

[[Page 70074]]

2 CFR part 200, subpart F, Audit Requirements. Audits must be made by 
an independent auditor in accordance with generally accepted government 
auditing standards covering financial and compliance audits. The 
Associate Administrator or a designee of the Associate Administrator 
may audit a recipient at any time.
0
10. Revise Sec.  110.80 to read as follows:


Sec.  110.80  Procurement.

    Recipients must use procurement procedures and practices that 
adhere to applicable State laws and regulations and Federal 
requirements as specified in the procurement standards of 2 CFR part 
200, as well as the Department of Transportation exception outlined at 
2 CFR 1201.317, as applicable.
0
11. Revise Sec.  110.90 to read as follows:


Sec.  110.90  Grant monitoring, reports, and records retention.

    (a) Grant monitoring. Project managers are responsible for managing 
the day-to-day operations of grant, subgrant, and contract-supported 
activities. Project managers must monitor the performance of supported 
activities to assure compliance with applicable Federal requirements 
and achievement of performance goals. Monitoring must cover each 
program, function, activity, or task covered by the grant.
    (b) Reports. (1) The recipient must submit financial and 
performance reports as required in the terms and conditions of the 
grant award. The final financial and performance reports are due 90 
days after the expiration or termination of the grant.
    (2) All required performance reports will be listed in the terms 
and conditions of the Notice of Grant Award.
    (3) Financial reporting must be supplied using Standard Form 425 
Federal Financial Report and submitted in accordance with the terms and 
conditions of the grant award.
    (c) Records retention. In accordance with 2 CFR part 200, all 
financial and programmatic records, supporting documents, statistical 
records, training materials, and other documents generated under a 
grant must be maintained by the project manager for three years from 
the date the project manager submits the final financial report. The 
project manager must designate a repository and single-point of contact 
for these purposes. If any litigation, claim, negotiation, audit or 
another action involving the records has been started before the 
expiration of the 3-year period, the records must be retained until the 
action and resolution of all issues that arise from it are completed, 
or until the end of the regular 3-year period, whichever is later.
0
12. Revise Sec.  110.100 to read as follows:


Sec.  110.100  Enforcement.

    If a recipient fails to comply with any term of an award (whether 
stated in a Federal statute or regulation, an assurance, a State plan 
or application, a notice of award, or elsewhere) a noncompliance action 
may be taken as specified in 2 CFR 200.338 through 200.342. The 
recipient will have the opportunity to object and provide information 
and documentation challenging the suspension or termination action, in 
accordance with 2 CFR 200.341. Costs incurred by the recipient agency 
during a suspension or after termination of an award are not allowable 
unless the Associate Administrator authorizes it in writing. Grant 
awards may also be terminated in whole or in part with the consent of 
the recipient at any agreed upon effective date, or by the recipient 
upon written notification.
0
13. Revise Sec.  110.110 to read as follows:


Sec.  110.110  After-grant requirements.

    The Associate Administrator will close out the award upon 
determination that all applicable administrative actions and all 
required work of the grant are complete in accordance with 2 CFR part 
200. The project manager must submit all financial, performance, and 
other reports required as a condition of the grant, within 90 days 
after the expiration or termination of the grant. This time frame may 
be extended by the Associate Administrator for cause.
0
14. Revise Sec.  110.120 to read as follows:


Sec.  110.120  Deviation from this part.

    Recipient agencies may request a deviation from the non-statutory 
provisions of this part. The Associate Administrator will respond to 
such requests in writing. If appropriate, the decision will be included 
in the grant agreement. Request for deviations from this part 110 must 
be submitted to: the Grants Chief at HMEP.Grants@dot.gov.
0
15. Revise Sec.  110.130 to read as follows:


Sec.  110.130  Disputes.

    Disputes should be resolved at the lowest level possible, beginning 
with the Grants Specialist, the Grants Team Lead, and the Grants Chief. 
If an agreement cannot be reached, the Associate Administrator will 
serve as the dispute resolution official, whose decision will be final.

    Issued in Washington, DC, on October 4, 2016, under authority 
delegated in 49 CFR 1.97.
William Schoonover,
Acting Associate Administrator for Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. 2016-24418 Filed 10-7-16; 8:45 am]
 BILLING CODE 4910-60-P