RegulusPipeline research91 FR 49301
Passage 1[Federal Register Volume 91, Number 148 (Tuesday, August 4, 2026)] [Rules and Regulations] [Pages 49301-49305] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2026-15803] ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration [Docket No. PHMSA-2025-0089 (HM-268A)] RIN 2137-AG03 Hazardous Materials: Reducing Burdens on Domestic Aerosol Shippers AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ----------------------------------------------------------------------- SUMMARY: PHMSA is amending the Hazardous Materials Regulations by updating the definition of an aerosol to eliminate unnecessary regulatory burdens and maintain consistency with current international transportation standards. DATES: This final rule is effective September 3, 2026. FOR FURTHER INFORMATION CONTACT: Noah Jacobson, Transportation Regulations Specialist, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-366-8553, [email protected]. A. What action is PHMSA taking in this final rule? PHMSA is revising the definition of an aerosol in 49 CFR 171.8 to add aerosols that consist solely of gases instead of requiring an aerosol to expel a liquid, paste, or powder. The Hazardous Materials Regulations (HMR) currently define an aerosol in 49 CFR 171.8 as ``an article consisting of any non- refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.'' This HMR definition for aerosols is inconsistent with corresponding international standards, which do not include the limitation for gas to be used to expel a liquid, paste, or powder (i.e., aerosol containers may expel a gas). The lack of harmonization between the HMR and international standards creates significant challenges for industry stakeholders engaged in global commerce, leading to confusion, increased compliance costs, and logistical inefficiencies, particularly for companies that manufacture, package,#
Passage 2or transport hazardous materials across borders. Lack of harmonization also impedes trade, delays shipments, and reduces the competitiveness of U.S. businesses in the global marketplace--all of which can increase prices for U.S. consumers. Therefore, PHMSA is revising the definition of an aerosol in Sec. 171.8 to align with the international definition and no longer require that an aerosol container be designed for the sole purpose of expelling a liquid, paste or powder, thereby reducing undue regulatory burdens without compromising safety. Effective 30 days after publication of this final rule, offerors of aerosols that consist solely of gases (i.e., that do not contain a liquid, paste, or powder) may be shipped as aerosols when prepared and shipped in compliance with the HMR. PHMSA is taking this action to align the HMR definition of ``aerosol'' with the international definition, which permits the shipment of pure gases as aerosols. As outlined in the final Regulatory Impact Analysis (RIA), PHMSA estimates that this change would result in annualized cost savings of $254,565.\1\ --------------------------------------------------------------------------- \1\ A copy of the RIA has been placed in the docket to this rulemaking. --------------------------------------------------------------------------- II. Summary of Comments Received in Response to the Notice of Proposed Rulemaking PHMSA published a notice of proposed rulemaking (NPRM), cited as HM-268A, to gather feedback on amending the definition of an aerosol to include a compressed gas other than the propellant, instead of restricting the definition to the expulsion of a liquid, paste, or powder.\2\ Please refer to the NPRM for background and discussion of the proposed change. --------------------------------------------------------------------------- \2\ 90 FR 28540 (Jul. 1, 2025). --------------------------------------------------------------------------- The following table alphabetically lists commenters to the NPRM:#
Passage 3------------------------------------------------------------------------ Commenter name Docket No. ------------------------------------------------------------------------ Aeropres Corporation............. PHMSA-2025-0089-0014 American Coatings Association.... PHMSA-2025-0089-0007 American Pyrotechnics Association PHMSA-2025-0089-0004 Blaster Corporation.............. PHMSA-2025-0089-0010 Council on Safe Transportation of PHMSA-2025-0089-0011 Hazardous Articles, Inc. (COSTHA). Dangerous Goods Advisory Council. PHMSA-2025-0089-0019 Diversified CPC International, PHMSA-2025-0089-0021 Inc. Household & Commercial Products PHMSA-2025-0089-0017 Association. Infotrac Inc..................... PHMSA-2025-0089-0003 International Vessel Operators PHMSA-2025-0089-0018 Dangerous Goods Association. ITW Techspray.................... PHMSA-2025-0089-0012 Medical Device Transport Council. PHMSA-2025-0089-0008 National Aerosol Association..... PHMSA-2025-0089-0009 Pyro Shows, Inc.................. PHMSA-2025-0089-0005 Pyrotek Special Effects Inc...... PHMSA-2025-0089-0002 Stoner Incorporated, Inc......... PHMSA-2025-0089-0020 ------------------------------------------------------------------------#
Passage 4All commenters supported the proposal to harmonize the definition of an aerosol with international standards. In addition, COSTHA requested that, after publication of the amendment, PHMSA notify all holders of special permits for this type of aerosol product that their permits have been incorporated into the HMR. PHMSA clarifies that, while formal notice of incorporation will not be provided at the time of publication of the final rule, holders will be notified if their renewal applications are denied on the basis that the special permit is no longer necessary. Separately, Infotrac Inc. noted that 49 CFR 171.23(b)(1) would require a conforming revision to align with the new definition of an aerosol. PHMSA agrees and is revising 49 CFR 171.23(b)(1) in this final rule to reflect the revised definition for an aerosol in 49 CFR 171.8. For these reasons, PHMSA is revising the definition of an aerosol in 49 CFR 171.8 and is making conforming revisions to 49 CFR 171.23 to align with the international definition of an aerosol, removing the requirement that an aerosol be designed for the sole purpose of expelling a liquid, paste, or powder. PHMSA has determined that these revisions will not have any adverse impact on safety.\3\ --------------------------------------------------------------------------- \3\ PHMSA found minimal safety incidents in an analysis of 30 years of special permit data. --------------------------------------------------------------------------- This final rule is published under the authority of the Secretary of Transportation as set forth in the Federal Hazardous Materials Transportation Laws (49 U.S.C. 5101 et seq.) and delegated to the PHMSA Administrator pursuant to 49 CFR 1.97. B. Executive Order 12866; Regulatory Planning and Review#
Passage 5Executive Order (E.O.) 12866 (Regulatory Planning and Review), as implemented by 49 CFR part 5, subpart B, requires agencies to regulate in the ``most cost-effective manner,'' to make a ``reasoned determination that the benefits of the intended regulation justify its costs,'' and to develop regulations that ``impose the least burden on society.'' \4\ In arriving at those conclusions, E.O. 12866 requires that agencies should consider ``both quantifiable measures . . . and qualitative measures of costs and benefits that are difficult to quantify'' and ``maximize net benefits . . . unless a statute requires another regulatory approach.'' E.O. 12866 also requires that ``agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.'' Pursuant to 49 CFR part 5, subpart B, PHMSA and other Operating Administrations must generally choose the ``least costly regulatory alternative that achieves the relevant objectives'' unless required by law or compelling safety need. In addition, 49 CFR part 5, subpart B specifies that regulations should generally ``not be issued unless their benefits are expected to exceed their costs.'' --------------------------------------------------------------------------- \4\ 58 FR 51735 (Oct. 4, 1993); 91 FR 22431 (Apr. 27, 2026); DOT Order 2100.7 (Ensuring Reliance Upon Sound Economic Analysis in Department of Transportation Policies, Programs, and Activities); see also DOT Order 2100.6B (Policies and Procedures for Rulemakings). ---------------------------------------------------------------------------#
Passage 6E.O. 12866 and 49 CFR part 5, subpart B also require that PHMSA submit ``significant regulatory actions'' to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President's Office of Management and Budget (OMB) for review. This final rule is not a significant regulatory action pursuant to E.O. 12866 and has not been designated as a ``major rule'' as defined by the Congressional Review Act (5 U.S.C. 801 et seq.). PHMSA has complied with the requirements in E.O. 12866 as implemented by 49 CFR part 5, subpart B and determined this final rule will result in cost savings by reducing regulatory burdens and regulatory uncertainty for manufacturers and shippers of aerosols. PHMSA finds cost savings will focus on those related to the reduction in burden for new special permit applications (e.g., new entrants to the market) and renewals for current special permit holders, as well as cost savings from the ability to transition to a single system of marks, labels, and documentation for domestic and international transport. PHMSA finds those cost savings will result in reduced costs for U.S. consumers to whom those entities generally transfer a portion of their compliance costs. The change aligns the HMR definition of aerosols with international standards (including the UN Model Regulations, IMDG Code, ICAO Technical Instructions, and ADR) and will not impose any new direct costs on U.S. aerosol manufacturers, shippers, or Federal regulatory agencies. The revision will expand regulatory flexibility by permitting the classification of gas-only aerosols without necessitating the presence of a liquid, paste, or powder. As a result, PHMSA finds this final rule will impose no new compliance, implementation, or oversight burdens. The change offers multiple sources of cost savings and regulatory relief. The current U.S. definition excludes gas-only aerosols from qualifying for limited quantity exceptions, requiring their treatment as fully regulated hazardous materials. Aligning the HMR with international standards will eliminate added costs for qualifying products, streamlining logistics and reducing compliance burdens, such as preparation of shipping papers for highway and rail shipments, payment of hazmat transportation surcharges, investment in extensive employee training, and additional requirements for storage and documentation. In a#
Passage 7ddition, companies currently operating under special permits to ship gas-only aerosols incur labor and administrative costs related to marking packages, using specific packaging, maintaining certain records, renewing permits every two to four years, and providing permit-specific training to relevant staff. PHMSA has issued dozens of special permits in different forms that allow for the transportation of pure gases in a manner equivalent to using the international definition of an aerosol. Examples of operational controls under these special permits include relaxation of the packaging requirements to allow transportation in DOT-2P, 2Q, or similar inner receptacles, and the elimination of certain shipping paper and placarding requirements. Elimination of the special permit requirement will produce direct labor cost savings and reduce administrative overhead for the private sector and improve government efficiency for PHMSA. Harmonization with international definitions will simplify cross-border trade by eliminating inconsistencies in classification and labeling. U.S. companies currently face trade friction when exporting aerosols that qualify under international definitions but not under U.S. rules. By adopting the broader international standard, U.S. manufacturers and marketers will gain improved access to the global aerosol market. This change will enhance the international competitiveness of U.S. aerosol products, enabling companies to increase market share and reduce barriers to export. The regulatory change is broadly expected to increase efficiency in transportation and logistics, lower product costs for businesses and potentially for consumers, and foster economic activity by reducing barriers to entry. PHMSA does not expect the final rule to have any adverse impact on safety. As outlined in the final RIA, PHMSA estimates this final rule will result in annualized cost savings from eliminating the need for new and renewal of special permits, reducing PHMSA reviews of special permit applications, and removing shipping paper requirements for qualifying gas-only aerosol shipments of about $254,565 (2024 dollars) at three percent and seven percent discount rates.#
Passage 8PHMSA has determined that this final rule is an E.O. 14192 (Unleashing Prosperity Through Deregulation) deregulatory action.\5\ As discussed in detail in the previous section, PHMSA has determined the total costs of the rule on the regulated community will be less than zero. This final rule does not implicate any of the factors identified in section 2(a) of E.O. 14219 (Ensuring Lawful Governance) indicative of a regulation that is ``unlawful . . . [or] that undermine[s] the national interest.'' \6\ --------------------------------------------------------------------------- \5\ 90 FR 9065 (Feb. 6, 2025). \6\ 90 FR 10583 (Feb. 25, 2025). --------------------------------------------------------------------------- D. Energy-Related Executive Orders 13211, 14154, and 14156 PHMSA has analyzed this final rule in accordance with the principles and criteria contained in E.O. 14156 (Declaring a National Energy Emergency) and E.O. 14154 (Unleashing American Energy).\7\ The President has declared a national emergency to address America's inadequate energy development production, transportation, refining, and generation capacity and asserted a Federal policy to unleash American energy by ensuring access to abundant supplies of reliable, affordable energy from (inter alia) the removal of ``undue burden[s]'' on the identification, development, or use of domestic energy resources. PHMSA finds this final rule to be consistent with E.O. 14156 and E.O. 14154 because it will not hinder or unduly burden the transportation or production of energy or energy-related products. --------------------------------------------------------------------------- \7\ 90 FR 8353 (Jan. 29, 2025); 90 FR 8353 (Jan. 29, 2025). ---------------------------------------------------------------------------#
Passage 9In addition, this final rule is not a ``significant energy action'' under E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use), which requires Federal agencies to prepare a Statement of Energy Effects for any ``significant energy action.'' \8\ Because this final rule is not a significant action under E.O. 12866, it will not have a significant adverse effect on supply, distribution, or energy use; accordingly, OIRA has not designated this final rule as a significant energy action. --------------------------------------------------------------------------- \8\ 66 FR 28355 (May 22, 2001). --------------------------------------------------------------------------- PHMSA analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132 (Federalism) and the Presidential Memorandum (Preemption) published in the Federal Register on May 22, 2009.\9\ E.O. 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have ``substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.'' The Federal Hazardous Materials Transportation Laws contain an express preemption provision at 49 U.S.C. 5125(b) that preempts State, local, and Tribal requirements on certain covered subjects, unless the non- Federal requirements are ``substantively the same'' as the Federal requirements, including the following: --------------------------------------------------------------------------- \9\ 64 FR 43255 (Aug. 10, 1999); 74 FR 24693 (May 22, 2009). ---------------------------------------------------------------------------#
Passage 10(1) The designation, description, and classification of hazardous material; (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material; (3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents; (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and (5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. This final rule addresses items covered in Paragraph 1 above and would preempt State, local, and Tribal requirements not meeting the ``substantively the same'' standard. Though the final rule may operate to preempt some State requirements, it would not impose any regulation that has substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government. The preemptive effect of the regulatory amendments in this final rule is limited to the minimum level necessary to achieve the objectives of the Federal Hazardous Materials Transportation Laws. Therefore, the consultation and funding requirements of E.O. 13132 do not apply.#
Passage 11The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires Federal agencies to conduct a Final Regulatory Flexibility Analysis (FRFA) for a final rule that has been subject to notice-and-comment rulemaking under the APA unless the agency head certifies that the final rule will not have a significant economic impact on a substantial number of small entities. E.O. 13272 (Proper Consideration of Small Entities in Agency Rulemaking) obliges agencies to establish procedures promoting compliance with the Regulatory Flexibility Act.\10\ DOT posts information on a dedicated web page to help small businesses understand and navigate Federal regulatory processes.\11\ This final rule was developed in accordance with E.O. 13272 and DOT implementing guidance to ensure compliance with the Regulatory Flexibility Act. The final rule will reduce burdens and reflect current economic realities without adversely impacting safety. Therefore, PHMSA certifies the final rule does not have a significant impact on a substantial number of small entities. --------------------------------------------------------------------------- \10\ 67 FR 53461 (Aug. 16, 2002). \11\ DOT, Rulemaking Requirements Related to Small Entities (last accessed Sept 3, 2024), available at: https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities. --------------------------------------------------------------------------- The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.) requires agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. For any proposed or final rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate of $100 million or more (in 1996 dollars) in any given year, the agency must prepare, amongst other things, a written statement that qualitatively and quantitatively assesses the costs and benefits of the Federal mandate. This final rule does not impose unfunded mandates under UMRA because it does not result in costs of $100 million or more (in 1996 dollars) per year for either State, local, or Tribal governments, or to the private sector.#
Passage 12PHMSA has analyzed this rule pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and has determined it is categorically excluded under 23 CFR 771.117(c)(20), which applies to the promulgation of rules, regulations, and directives. Under Section 9 of DOT Order 5610.1D, PHMSA may apply a categorical exclusion (CE) established in another Operating Administration's procedures. PHMSA followed the requirements outlined in DOT Order 5610.1D to apply the Federal Highway Administration's CE to this deregulatory action. PHMSA has determined no unusual circumstances are present under 23 CFR 771.117(b). PHMSA's Categorical Exclusion Determination memo for this action is available on PHMSA's website.\12\ --------------------------------------------------------------------------- \12\ Pipeline and Hazardous Materials Safety Admin., Implementing Procedures (last accessed Feb. 11, 2026), available at: https://www.phmsa.dot.gov/planning-and-analytics/environmental-analysis-and-compliance/implementing-procedures. --------------------------------------------------------------------------- PHMSA analyzed this final rule according to the principles and criteria in E.O. 13175 (Consultation and Coordination with Indian Tribal Governments) and DOT Order 5301.1A (Department of Transportation Tribal Consultation Policies and Procedures).\13\ E.O. 13175 requires agencies to assure meaningful and timely input from Tribal government representatives in the development of rules that significantly or uniquely affect Tribal communities by imposing ``substantial direct compliance costs'' or ``substantial direct effects'' on such communities or the relationship or distribution of power between the Federal Government and Tribes. --------------------------------------------------------------------------- \13\ 65 FR 67249 (Nov. 9, 2000). ---------------------------------------------------------------------------#
Passage 13PHMSA assessed the impact of the final rule and determined that it will not significantly or uniquely affect Tribal communities or Indian Tribal governments. The rulemaking's regulatory amendments have a broad, national scope; therefore, this final rule will not significantly or uniquely affect Tribal communities, much less impose substantial compliance costs on Tribal governments or mandate Tribal action. For these reasons, PHMSA has concluded that the funding and consultation requirements of E.O. 13175 and DOT Order 5301.1A do not apply. The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR 1320.8(d) requires that PHMSA provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. This rulemaking will not create, amend, or rescind any existing information collections. There is potential for a slight reduction in the number of shipping papers required under OMB Control Number 2137-0034, Hazardous Materials Shipping Papers & Emergency Response Information, due to aerosols being shipped as limited quantities by highway or rail. However, this reduction will be minimal and difficult to quantify in relation to the overall shipping paper burden. K. Executive Order 13609 and International Trade Analysis E.O. 13609 (Promoting International Regulatory Cooperation) \14\ requires agencies consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements. --------------------------------------------------------------------------- \14\ 77 FR 26413 (May 4, 2012). ---------------------------------------------------------------------------#
Passage 14Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA engages with international standards setting bodies to protect the safety of the American public. PHMSA has assessed the effects of the final rule and has determined that its regulatory amendments will not cause unnecessary obstacles to foreign trade. L. Cybersecurity and Executive Order 14028 Executive Order 14028 (Improving the Nation's Cybersecurity) directed the Federal Government to improve its efforts to identify, to deter, and to respond to ``persistent and increasingly sophisticated malicious cyber campaigns.'' \15\ PHMSA has considered the effects of the final rule and has determined that its regulatory amendments would not materially affect the cybersecurity risk profile for affected entities. --------------------------------------------------------------------------- \15\ 86 FR 26633 (May 17, 2021). --------------------------------------------------------------------------- In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to inform its rulemaking process better. 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 http://www.dot.gov/privacy. DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000, or on DOT's website at http://www.dot.gov/privacy. Definitions, Exports, Hazardous materials transportation, Hazardous waste, Imports, Reporting and recordkeeping requirements. In consideration of the foregoing, PHMSA amends 49 CFR Chapter I as follows: PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS#
Passage 150 1. The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28 U.S.C. 2461 note); 49 CFR 1.81 and 1.97. 0 2. In Sec. 171.8, revise the definition of ``Aerosol'' to read as follows: Sec. 171.8 Definitions and abbreviations. * * * * * Aerosol means an article consisting of a non-refillable receptacle containing a gas (compressed, liquefied, or dissolved under pressure), with or without a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder, and fitted with a self-closing release device allowing the contents to be ejected as a foam, paste, or powder or in a liquid state or in a gaseous state. * * * * * 0 3. In Sec. 171.23, revise paragraph (b)(1) to read as follows: Sec. 171.23 Requirements for specific materials and packagings transported under the ICAO Technical Instructions, IMDG Code, Transport Canada TDG Regulations, or the IAEA Regulations. * * * * * (b) * * * (1) Aerosols. Except for a limited quantity of a compressed gas in a container of not more than 4 fluid ounces capacity meeting the requirements in Sec. 173.306(a)(1) of this subchapter, the proper shipping name ``Aerosol,'' UN1950, may be used only for a non- refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure fitted with a self-closing release device (see Sec. 171.8 of this subchapter). In addition, an aerosol must be in a metal packaging when the packaging exceeds 7.22 cubic inches. * * * * * Issued in Washington, DC, on July 31, 2026, under the authority delegated in 49 CFR 1.97. Paul J. Roberti, Administrator, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2026-15803 Filed 8-3-26; 8:45 am] BILLING CODE 4910-60-P#
This material provides agency context. It does not replace binding regulatory text, and its legal effect depends on the underlying authority and facts.