2024-10098. Hazardous Materials: Harmonization With International Standards; Correction

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

ACTION:

Final rule; correction.

SUMMARY:

The Pipeline and Hazardous Materials Safety Administration is correcting a final rule that was published in the Federal Register on April 10, 2024. The final rule was published to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. The corrections address several errors to the hazardous material entries in the hazardous materials table.

DATES:

This correction is effective May 10, 2024.

FOR FURTHER INFORMATION CONTACT:

Steven Andrews, Standards and Rulemaking, or Candace Casey, Standards and Rulemaking, at 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, East Building, 2nd Floor, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background and Need for Technical Corrections

On April 10, 2024, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule in the Federal Register entitled “Hazardous Materials: Harmonization with International Standards.” ^[1] In the final rule, the amendatory instruction 19c for the revision of Table 4 to paragraph (g) in § 173.225 should have read: “In newly designated Table 4 to paragraph (g), under UN No. 3109, and above “tert-Butyl hydroperoxide, not more than 72% with water” add an entry for “tert-Butyl hydroperoxide, not more than 56% with diluent type B² ” and revise the Notes after newly designated table 4 to paragraph (g) to read as follows.” The publication of this correction is needed to ensure that the final rule's amendment of Table 4 to paragraph (g) of § 173.225—which the amendment is effective May 10, 2024—will read as intended.

Additionally, changes in the final rule included numerous amendments to the § 172.101 Hazardous Materials Table (HMT). Unfortunately, the amendments to a few of the table entries introduced new unintended errors that PHMSA is correcting in this notice. The unintended errors are summarized below.

• UN3548, Articles containing miscellaneous dangerous goods, n.o.s.: In HM-215Q, PHMSA revised the entry “UN3548, Articles containing miscellaneous dangerous goods, n.o.s.” to add Special Provision A224 to Column 7. Special Provision A224 allows for the transport of large articles containing a non-flammable, non-toxic gas or environmentally hazardous substances on both passenger aircraft and cargo aircraft only under certain conditions. As a part of this HM-215Q revision, PHMSA inadvertently removed label code “9” from Column 6. Label Code “9” in Column 6 is necessary to ensure Class 9 labels are placed on packages shipped under “UN3548, Articles containing miscellaneous dangerous goods, n.o.s.” To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”
• UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.: In HM-215Q, PHMSA revised the entry “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.,” to add Special Provision A225 to Column 7. Special Provision A225 allows for the transport of large articles containing a non-flammable, non-toxic gas or environmentally hazardous substances on both passenger aircraft and cargo aircraft only under certain conditions. As a part of this revision, PHMSA inadvertently removed the “G” from Column 1 of the “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.” entry. The “G” in Column 1 identifies proper shipping names for which one or more technical names of the hazardous material must be entered in parentheses, in association with the basic description. To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”
• UN2922, Corrosive liquids, toxic, n.o.s.: In HM-215Q, PHMSA made a revision to the entry “UN2922, Corrosive liquid, toxic, n.o.s.” to add Special Provision A4 to Column 7. Special Provision A4 addresses liquids and solids in PG I that also pose an inhalation toxicity hazard by limiting or prohibiting their transportation on aircraft. As written, the regulatory instructions in HM-215Q might inadvertently remove the PG II and III entries for “UN2922, Corrosive liquid, toxic, n.o.s.” Therefore, the regulatory instruction needs to be revised to ensure that PG II and III for “UN2922, Corrosive liquid, toxic, n.o.s.” are not deleted from the HMT. To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”
• UN2923, Corrosive solids, toxic, n.o.s.: In HM-215Q, PHMSA made a revision to the entry “UN2923, Corrosive solids, toxic, n.o.s.” to add Special Provision A5 to Column 7. Special Provision A5 addresses liquids and solids in PG I that also pose an inhalation toxicity hazard by limiting or prohibiting their transportation on aircraft. As written, the regulatory instruction for the HMT might inadvertently remove the PG II and III entries for “UN2923, Corrosive solids, toxic, n.o.s.” Therefore, the regulatory instructions need to be revised to ensure that PG II and III for “UN2923, Corrosive solids, toxic, n.o.s.” are not deleted from the HMT. To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”
• UN0512, Detonators, electronic programmable for blasting: In HM-215Q, PHMSA made a revision to the entry “UN0512, Detonators, electronic programmable for blasting.” In the 2022 HM-215P final rule, PHMSA added three new entries for electronic detonators to distinguish them from electric detonators, which have different functioning characteristics but similar regulatory provisions for their transport and incorrectly assigned an obsolete special provision, Special Provision 103. In HM-215Q, PHMSA removed the reference to Special Provision 103 in Column 7 for UN0512 and replaced it with Special Provision 148 consistent with the entry of UN0255. However, in making this revision in HM-215Q, PHMSA inadvertently made the word “electronic” in “UN0512, Detonators, electronic programmable for blasting” in italics. Proper shipping names listed in the HMT are limited to those shown in Roman type (not italics). To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”
• UN3148, Water-reactive liquid, n.o.s.: In HM-215Q, PHMSA made corrections to multiple HMT entries that were inadvertently modified in previous rulemakings. Specifically, for the PG II and III entries for “UN3129, Water-reactive liquid, corrosive, n.o.s.” and “UN3148, Water-reactive liquid, n.o.s.,” the references to the exceptions in § 173.151 in Column 8A were removed and replaced with the word “None.” In doing so however, PHMSA inadvertently made revisions to the PG II entry for “UN3148, Water-reactive liquid, n.o.s.,” that were not intended. This includes inadvertent revisions to columns 7, 8B, 8C, 9A, and 9B for the PG II entry for “UN3148, Water-reactive liquid, n.o.s.” To meet the original intent of HM-215Q to harmonize with international standards, PHMSA is correcting this error in this notice. See “Section III. Corrections.”

II. Regulatory Analyses and Notices

A. Statutory/Legal Authority

Statutory authority for this notice's corrections to the final rule, as with the final rule itself, is provided by the Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.). The Secretary delegated the authority granted in the Federal hazardous materials transportation law to the PHMSA Administrator at 49 CFR 1.97(b).

PHMSA finds it has good cause to make the technical corrections herein without notice and comment pursuant to Section 553(b) of the Administrative Procedure Act (APA, 5 U.S.C. 551, et seq.). Section 553(b)(B) of the APA provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. As explained above, the corrections here consists of technical correction to amend the amendatory instruction 19c. to § 173.225 which (as published in the Federal Register ) inadvertently would not make a necessary revision to an entry in Table 4 to paragraph (g), as well as cure inadvertent omissions of current HMT fields. The publication of these corrections are needed to ensure that § 173.225 and the HMT continue to read as intended; these technical corrections make no substantive changes to the final rule but merely facilitate its implementation. Because the final rule is the product of an extensive administrative record with numerous opportunities—including through written comments—for public comment, PHMSA finds that additional comment on the technical corrections herein is unnecessary.

The May 10, 2024, effective date of the corrections contained in this notice is authorized under both Section 553(d)(1) and (3) of the APA. Section 553(d)(1) provides that a rule should take effect “not less than 30 days” after publication in the Federal Register except for “a substantive rule which grants or recognizes an exemption or relieves a restriction,” while Section 553(d)(3) allows for earlier effectiveness for good cause found by the agency and published within the rule. 5 U.S.C. 553(d)(1), (3). “The purpose of the thirty-day waiting period is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. F.C.C., 78 F.3d 620, 630 (D.C. Cir. 1996). Since this final rule has not yet taken effect, the impact on affected parties is minimal and such parties will not be adversely impacted by the shortened period before the corrections become effective. The correction of amendatory instruction 19c. ensures that the intended regulatory language at Table 4 to paragraph (g) in § 173.225 will be codified in regulation, and other corrections restore HMT fields that could be inadvertently deleted by the final rule; in accordance with 5 U.S.C. 553(d)(1), those corrections will be effective May 10, 2024. Moreover, PHMSA finds that good cause under Section 553(d)(3) supports making the revisions effective May 10, 2024, because the corrections contained in this notice are entirely consistent with the final rule—which itself was published in April 2024—and help promote timely compliance with the final rule's requirements before its May 10, 2024, effective date.

B. Executive Order 12866 and 14094, and DOT Regulatory Policies and Procedures

These corrections have been evaluated in accordance with existing policies and procedures and are not considered significant under Executive Order 12866 (“Regulatory Planning and Review”),^[2] Executive Order 14094 (“Modernizing Regulatory Review”),^[3] and DOT Order 2100.6A (“Rulemaking and Guidance Procedures”); therefore, this notice has not been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. PHMSA finds that the technical corrections herein (in all respects consistent with the final rule) neither impose incremental compliance costs nor adversely affect safety. Overall, PHMSA expects any impacts on the expected costs and benefits of the final rule will be negligible.

C. Executive Order 13132

PHMSA has analyzed these corrections in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”) ^[4] and the Presidential memorandum (“Preemption”) that was published in the Federal Register on May 22, 2009.^[5] 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.” The technical corrections herein are consistent with, and merely facilitate compliance with, the final rule, and do not have any substantial direct effect 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 beyond what was accounted for in the final rule. This notice does not contain any provision that imposes any substantial direct compliance costs on state and local governments, nor any new provision that preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

D. Executive Order 13175

These corrections were analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”) ^[6] and DOT Order 5301.1A (“Department of Transportation Tribal Consultation Policies and Procedures”). Executive Order 13175 and DOT Order 5301.1A require DOT Operating Administrations to assure meaningful and timely input from Native American tribal government representatives in the development of rules that significantly or uniquely affect tribal communities by imposing “substantial direct compliance costs” or “substantial direct effects” on such communities, or the relationship and distribution of power between the Federal Government and Native American tribes. Because the technical corrections herein do not have Tribal implications or impose substantial direct compliance costs on Indian Tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires agencies to review regulations to assess their impact on small entities unless the agency head certifies that a rulemaking will not have a significant economic impact on a substantial number of small entities including small businesses, not-for-profit 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”) ^[7] 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.^[8]

This corrections document was—like the final rule—developed in accordance with Executive Order 13272 and with DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. These corrections—like the final rule—facilitate the transportation of hazardous materials in international commerce by providing consistency with international standards. Those corrections apply to offerors and carriers of hazardous materials, some of whom are small entities, such as chemical manufacturers, users, and suppliers; and packaging manufacturers, distributors, and training companies. As discussed at length in the regulatory impact analysis (RIA) that accompanied the final rule and was posted in the rulemaking docket, the amendments in the final rule should result in net cost savings that will ease the regulatory compliance burden for those and other entities engaged in domestic and international commerce, including trans-border shipments within North America. Additionally, the changes in the final rule will relieve U.S. companies—including small entities competing in foreign markets—from the burden of complying with a dual system of regulations. Therefore, PHMSA expects that these corrections—like the amendments in the final rule—will not have a significant economic impact on a substantial number of small entities. Because the technical corrections herein will impose no new incremental compliance costs, PHMSA understands the analysis in the RIA remains unchanged.

F. Paperwork Reduction Act

The corrections in this notice impose no new or revised information collection requirements beyond those discussed in the final rule.

G. Unfunded Mandates Reform Act of 1995

PHMSA analyzed the corrections in this notice under the factors in the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1501 et seq.) and determined that the corrections to the final rule herein do not impose enforceable duties on state, local, or tribal governments or on the private sector of $100 million or more, adjusted for inflation, in any one year. PHMSA prepared an analysis of the UMRA considerations in the final RIA for the final rule, which is available in the docket for the rulemaking. Because the corrections herein will impose no new incremental compliance costs, PHMSA understands the analysis in that UMRA discussion for the final rule remains unchanged.

H. Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.) requires federal agencies to prepare a detailed statement on major Federal actions significantly affecting the quality of the human environment. PHMSA analyzed the final rule in accordance with NEPA, implementing Council on Environmental Quality regulations (40 CFR parts 1500-1508), and DOT implementing policies (DOT Order 5610.1C, “Procedures for Considering Environmental Impacts”) and determined the final rule would have not significantly impact on the human environment. The corrections to the final rule in this notice have no effect on PHMSA's earlier NEPA analysis as they are consistent, and merely facilitate compliance with, the final rule.

I. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to 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.

J. Executive Order 13609 and International Trade Analysis

Under Executive Order 13609 (“Promoting International Regulatory Cooperation”),^[9] 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 would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The corrections to the final rule in this notice do not impact international trade.

K. 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. The final rule involved multiple voluntary consensus standards which were discussed at length in the discussion on § 171.7. The corrections herein do not change the final rule's analysis.

L. Executive Order 13211

Executive Order 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”) ^[10] requires federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” The corrections herein do not invoke any issues under Executive Order 13211.

M. Cybersecurity and Executive Order 14028

Executive Order 14028 (“Improving the Nation's Cybersecurity”) ^[11] directed the federal government to improve its efforts to identify, deter, and respond to “persistent and increasingly sophisticated malicious cyber campaigns.” The corrections herein do not invoke any cybersecurity issues.

N. Severability

These corrections do not present any issues with severability.

III. Corrections

PHMSA makes corrections to the regulatory text of the final rule document. PHMSA is correctly revising the § 172.101 HMT entries for the hazardous materials discussed above in Section I. Additionally, PHMSA is correcting the amendatory instruction 19c.

In FR Doc. 2024-06956, appearing on page 25434 in the Federal Register of Wednesday, April 10, 2024, the following corrections are made:

a. On page 25474, revise the entry for “Articles containing miscellaneous dangerous goods, n.o.s.”;

b. On page 25474, revise the entry for “Articles containing non-flammable, non-toxic gas, n.o.s.”;

c. On page 25474, revise the entry for “Corrosive liquids, toxic, n.o.s.”;

d. On page 25474, add seven stars in between the “Corrosive liquids, toxic, n.o.s.” entry and the “Corrosive solids, toxic, n.o.s.” entry;

e. On page 25474, revise the entry for “Corrosive solids, toxic, n.o.s.”;

f. On page 25474, revise the entry for “Detonators, electronic programmable for blasting”; and

g. On page 25475, revise the entry for “Water-reactive liquid, n.o.s.”.

The corrections read as follows:

§ 172.101

[Corrected]

* * * * *

§ 172.101

Hazardous Materials Table

§ 173.225

[Corrected]

2. On page 25481, in part 173, in amendment 19c., the instruction “Revise newly designated table 4 to paragraph (g).:” is corrected to read “In newly designated table 4 to paragraph (g), under UN No. 3109, and above “tert-Butyl hydroperoxide, not more than 72% with water” add an entry for “tert-Butyl hydroperoxide, not more than 56% with diluent type B ² ” and revise the Notes after newly designated table 4 to paragraph (g) to read as follows”.

Issued in Washington, DC, on May 3, 2024, under authority delegated in 49 CFR 1.97.

Tristan H. Brown,

Deputy Administrator, Pipeline and Hazardous Materials Safety Administration.

Footnotes

1.  89 FR 25434 (Apr. 10, 2024).

2.  58 FR 51735 (Oct. 4, 1993).

3.  88 FR 21879 (April 11, 2023).

4.  64 FR 43255 (Aug. 10, 1999).

5.  74 FR 24693 (May 22, 2009).

6.  65 FR 67249 (Nov. 9, 2000).

7.  67 FR 53461 (Aug. 16, 2002).

8.  DOT, “Rulemaking Requirements Related to Small Entities,” https://www.transportation.gov/​regulations/​rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).

9.  77 FR 26413 (May 4, 2012).

10.  66 FR 28355 (May 22, 2001).

11.  86 FR 26633 (May 17, 2021).