[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 39570-39575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10098]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173, 175, 176, 178, and 180
[Docket No. PHMSA-2021-0092 (HM-215Q)]
RIN 2137-AF57
Hazardous Materials: Harmonization With International Standards;
Correction
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule; correction.
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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 Sec. 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 B\2\'' 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 Sec. 173.225--which the amendment is effective
May 10, 2024--will read as intended.
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\1\ 89 FR 25434 (Apr. 10, 2024).
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Additionally, changes in the final rule included numerous
amendments to the Sec. 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
[[Page 39571]]
``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 Sec. 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 Sec. 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 Sec. 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 Sec. 173.225 will be codified in regulation, and
other
[[Page 39572]]
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.
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\2\ 58 FR 51735 (Oct. 4, 1993).
\3\ 88 FR 21879 (April 11, 2023).
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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.
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\4\ 64 FR 43255 (Aug. 10, 1999).
\5\ 74 FR 24693 (May 22, 2009).
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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.
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\6\ 65 FR 67249 (Nov. 9, 2000).
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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\
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\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).
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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
[[Page 39573]]
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.
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\9\ 77 FR 26413 (May 4, 2012).
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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 Sec. 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.
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\10\ 66 FR 28355 (May 22, 2001).
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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.
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\11\ 86 FR 26633 (May 17, 2021).
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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 Sec. 172.101 HMT entries for
the hazardous materials discussed above in Section I. Additionally,
PHMSA is correcting the amendatory instruction 19c.
0
In FR Doc. 2024-06956, appearing on page 25434 in the Federal Register
of Wednesday, April 10, 2024, the following corrections are made:
0
a. On page 25474, revise the entry for ``Articles containing
miscellaneous dangerous goods, n.o.s.'';
0
b. On page 25474, revise the entry for ``Articles containing non-
flammable, non-toxic gas, n.o.s.'';
0
c. On page 25474, revise the entry for ``Corrosive liquids, toxic,
n.o.s.'';
0
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;
0
e. On page 25474, revise the entry for ``Corrosive solids, toxic,
n.o.s.'';
0
f. On page 25474, revise the entry for ``Detonators, electronic
programmable for blasting''; and
0
g. On page 25475, revise the entry for ``Water-reactive liquid,
n.o.s.''.
The corrections read as follows:
Sec. 172.101 [Corrected]
* * * * *
Sec. 172.101 Hazardous Materials Table
BILLING CODE 4910-60-P
[[Page 39574]]
[GRAPHIC] [TIFF OMITTED] TR09MY24.065
[[Page 39575]]
Sec. 173.225 [Corrected]
0
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.
[FR Doc. 2024-10098 Filed 5-8-24; 8:45 am]
BILLING CODE 4910-60-C