[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Rules and Regulations]
[Pages 56957-56959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27953]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 173
[Docket HM-215A; Amdt. No. 173-242]
RIN 2137-AC42
Implementation of the United Nations Recommendations,
International Maritime Dangerous Goods Code, and International Civil
Aviation Organization's Technical Instructions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Response to petition for reconsideration.
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SUMMARY: On December 29, 1994, RSPA published a final rule which
amended the Hazardous Materials Regulations to maintain alignment with
corresponding provisions of international standards. A final rule
correcting errors in the December 29, 1994 final rule and responding to
petitions for reconsideration was published on May 18, 1995. This final
rule denies a petition for reconsideration to the May 18, 1995 final
rule concerning adoption of certain testing provisions for plastic
aerosol containers.
EFFECTIVE DATE: The effective date for the final rules published under
Docket HM-215A on December 29, 1994 (59 FR 67390), and May 18, 1995 (60
FR 26796), remains October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Nancy Machado, Office of the Chief
Counsel, (202) 366-4400, Research and Special Programs Administration,
U.S. Department of Transportation, 400 Seventh Street S.W., Washington,
DC 20590-0001.
SUPPLEMENTARY INFORMATION: On July 18, 1994, RSPA published a Notice of
Proposed Rulemaking (NPRM) (59 FR 36488) proposing changes to the
Hazardous Materials Regulations (HMR) in order to maintain alignment
with corresponding provisions of the recently revised International
Maritime Dangerous Goods Code (IMDG Code), International Civil Aviation
Organization's Technical Instructions for the Safe Transport of
Dangerous Goods by Air (ICAO Technical Instructions) and United Nations
Recommendations on the Transport of Dangerous Goods (UN
Recommendations). On December 29, 1994, RSPA published a final rule
under Docket HM-215A (59 FR 67390). A final rule published on May 18,
1995 (60 FR 26796), incorporated editorial and technical revisions to
the December 29, 1994 final rule based on the merit of petitions and
other revisions RSPA determined to be necessary to correct or clarify
the final rule.
One of these editorial revisions entailed deleting all references
in Sec. 173.306(a)(3)(v) to testing procedures for certain non-
specification plastic aerosol containers. (Section 173.306(a)(3)(v)
enumerates one of the five different conditions that must be met in
order to ship limited quantities of compressed gas in metal
containers.) Language in the preamble to the July 18, 1994 NPRM and in
the December 29, 1994 final rule suggested that RSPA intended to add
testing provisions for plastic aerosol containers. However, the HMR do
not authorize the use of plastic aerosol containers, and both documents
were silent on any intent to authorize the use of plastic aerosol
containers. In proposing and adopting revisions to
Sec. 173.306(a)(3)(v), RSPA inadvertently incorporated UN
Recommendation language regarding testing procedures for plastic
containers. (See, UN Recommendations, Eighth Ed. Paras. 9.8.1 and 9.8.2
entitled ``Leakproofness Test for Aerosols and Small Receptacles for
Gas.'')
This drafting error was brought to RSPA's attention by a member of
petitioner Winston & Strawn's staff during a telephone conversation
with a RSPA staff member, and in a subsequent letter dated January 10,
1995, seeking clarification of the origin and intent of the amendments
to Sec. 173.306(a). On May 16, 1995, RSPA responded to petitioner's
letter and stated that
Based on a provision in the UN Recommendations, RSPA proposed
and incorporated a hot water bath test for aerosol containers in
Sec. 173.306(a)(3)(v). By adopting provisions identical to those
contained in the UN Recommendations, RSPA failed to remove wording
referring to certain non-specification plastic aerosol containers.
It was not RSPA's intent in amending Sec. 173.306 to authorize the
use of plastic containers, and the final rule made no revisions to
paragraphs (a)(3) and (a)(3)(ii), which specify only metal
containers. We plan to amend paragraph (a)(3)(v) to remove all
reference to plastic containers in order to clarify that they are
not authorized for use under the HMR.
On May 18, 1995, RSPA published a final rule and amended
Sec. 173.306(a)(3)(v) to remove all references to plastic containers.
RSPA explained that in adopting provisions identical to those contained
in the UN Recommendations regarding metal containers, it had failed to
remove wording referring to testing of certain non-specification
plastic aerosol containers. Because plastic containers are not
authorized for use under Sec. 173.306(a)(3), RSPA removed all
references to the hot water immersion test for plastic containers from
Sec. 173.306(a)(3)(v).
On June 16, 1995, Winston & Strawn filed a petition for
reconsideration of this issue, on behalf of an unnamed client, on the
grounds that adequate notice and an opportunity to comment were not
given for this change, as required under the Administrative Procedure
Act, 5 U.S.C. 553, and that RSPA's actions were arbitrary and
capricious. The petitioner asked RSPA to reinstate
Sec. 173.306(a)(3)(v) as originally promulgated in the December 29,
1994 final rule. The petitioner also asked that RSPA make several
``editorial revisions'' in paragraphs (a)(3) and (a)(3)(ii) so as to
authorize the use of plastic containers for aerosols. A copy of this
petition for reconsideration is on file in the Dockets Unit (DHM-30),
[[Page 56958]]
Room 8421 of the Nassif Building, 400 Seventh Street, SW., Washington
DC and may be reviewed between the hours of 8:30 a.m. and 5 p.m. Monday
through Friday, except for Federal holidays.
In its May 18, 1995 final rule, RSPA stated that it was making an
editorial correction to Sec. 173.306(a)(3)(v) to remove all references
to plastic containers because those containers are not authorized for
use under Sec. 173.306(a)(3). In treating this amendment as a routine
editorial correction, RSPA reasoned that: (1) There would be no public
interest in retaining testing procedures for containers that are not
authorized for use; (2) removing the language would have no impact on
the industry because the containers are not authorized for use; and (3)
removing the language would avoid confusion. Consequently, RSPA
determined that notice and comment were unnecessary.
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553, sets
forth the requirement for public notice and an opportunity to comment
on rulemaking proceedings. Section 553(b) requires that an NPRM be
published in the Federal Register, unless persons subject to the
requirements of the rulemaking are named and either personally served
or otherwise have actual notice. Section 553(b)(3) states that
publication of an NPRM is not required when
the agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefor in the rules issued) that
notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest. (Emphasis added.)
Section 553(b)(3) makes clear that ``there is no need for giving
the public an opportunity to participate in minor amendments to rules *
* *.'' Texaco v. Federal Power Commission, 412 F.2d 740, 743 (3rd Cir.
1969). The court in Texaco, quoting National Motor Freight Traffic
Ass'n v. U.S., 268 Fed. Supp. 90, 95-96 (D.D.C. 1967), aff'd 393 U.S.
18, found the language of 5 U.S.C. 553(b)(3) to apply to situations
where an agency rule is ``a routine determination,'' ``insignificant in
nature and impact,'' and unimportant ``to the industry and to the
public.'' Texaco at 743. The Texaco court also quoted the Attorney
General's Manual on Administrative Procedure Act (1947), pp. 12-13,
which contains the following language: `` `Unnecessary' refers to the
issuance of a minor rule or amendment in which the public is not
particularly interested. Senate Hearings (1941, p. 882.'' Id.
As evidenced by petitioner's telephone call and January 10, 1995
letter, the petitioner itself recognizes that, standing alone, the
language as adopted in the December 29, 1994 final rule does not
authorize the use of plastic aerosol containers. In fact, the December
29, 1994 language regarding testing for plastic aerosol containers
conflicts with Sec. 173.306(a) which makes clear that only metal
containers are authorized. In its petition for reconsideration,
Petitioner not only asked that the language from the December 29, 1994
rule be reinstated but also that several additional revisions be made
to Sec. 173.306 (a)(3)(v) in order to authorize the use of plastic
aerosol containers. Specifically, petitioner requests that the limiting
reference to metal containers be removed from Secs. 173.306 (a)(3) and
(a)(3)(ii)) so that plastic containers would also be authorized. The
revisions requested by petitioner are exactly the type that would be
subject to the notice and comment requirements of 5 U.S.C. 553(b) in
that they propose a significant change to the regulations that would
have a substantial impact on the regulated industry. For example, RSPA
is not aware of any proposed industry standards for the manufacture and
use of aerosol containers other than those made of metal.
With respect to petitioner's statement that compliance with the May
18, 1995 final rule is ``unreasonable,'' the final rule merely makes
clear that no new containers are authorized under Sec. 173.306(a)(3);
it neither imposes new requirements, burdens, restrictions or costs on
the industry nor eliminates any rights or benefits.
Petitioner also argues that the record does not support RSPA's
contention that the language regarding testing standards for plastic
aerosol containers was mistakenly inserted into the NPRM and final rule
by RSPA staff because of (1) the specificity of the language with
regard to the testing procedures; (2) the preamble language suggesting
that RSPA intended to propose the testing procedures; and (3) RSPA's
stated intent to harmonize the HMR with the various international
standards. Consequently, petitioner argues that RSPA's May 18, 1995
action in revising the language of Sec. 173.306(a)(3)(v) was arbitrary
and capricious. In support of this contention, petitioner cites three
cases which stand for the propositions that: (1) There must be a
rational connection between the facts found and the choice made by an
agency, see Motor Vehicle Mfrs. Ass'n of the United States v. State
Farm Mut. Automobile Insurance Co., 463 U.S. 29, 42 (1983) (in
rescinding requirement, agency failed to consider other viable
options); and (2) the reason for an agency's action must be
satisfactorily articulated, see Kent County, Delaware Levy Court v.
U.S. Environmental Protection Agency, 963 F.2d 391, 397 (D.C. Cir 1992)
(agency failed to offer any reason why it was infeasible to follow its
own experts' recommendations); HLI Lordship Industries, Inc. v. The
Committee for Purchase from the Blind and Other Severely Handicapped,
791 F.2d 1136, 1141 (5th Cir. 1981) (agency provided no basis for its
decision).
As discussed both above and below, RSPA's action in rescinding the
erroneously adopted testing provisions for plastic containers was
rational and well articulated. First, as noted above, the NPRM and
final rule language regarding testing procedures for plastic aerosol
containers is virtually identical to the language in paragraphs 9.8.1
and 9.8.2 of the Eighth edition of the UN Recommendations. In preparing
the NPRM, RSPA staff failed to note that it had incorporated the
testing procedure for plastic aerosol containers into the language it
borrowed ``wholesale'' from paragraphs 9.8.1. and 9.8.2. of the UN
Recommendations. Consequently, the specificity of the language in the
NPRM and final rule shows only that RSPA did indeed copy the language
from the UN Recommendations. The identical language appears in both the
NPRM and final rule because no comments were received regarding the
proposed changes to Sec. 173.306 and, as a result, the erroneous
language in the NPRM was simply carried over, without change, into the
final rule.
The language in the preamble of the NPRM and final rule regarding
the proposed addition of testing provisions for plastic containers was
drafted after RSPA staff had identified the provisions of the various
international standards it would propose to adopt in the NPRM. The
preamble language merely reflected the contents of the proposed
regulatory text for Sec. 173.306(a)(3)(v). It is not logical that RSPA
would have intentionally proposed to adopt (and subsequently adopted)
testing provisions for containers that are not authorized for use, or
that RSPA would have chosen this confusing manner in which to authorize
plastic aerosol containers. Specifically, Secs. 173.306(a)(1), (a)(2),
and (a)(3) clearly identify, in the first line of each text, the three
packagings that are authorized for the transportation of limited
quantities of compressed gas. The subparagraphs that follow each of
those three paragraphs set forth the limitations or conditions that
apply to those three packagings. It would be illogical for RSPA to have
buried an authorization for plastic containers in the last of five
[[Page 56959]]
subparagraphs that relate to a paragraph authorizing metal containers.
Finally, petitioner asserts that RSPA's failure to adopt an
authorization for plastic aerosol containers is directly contrary to
RSPA's statement in the NPRM and final rule that the purpose of the
rulemaking was to maintain alignment with corresponding provisions of
international standards. Petitioner repeatedly argues that RSPA's
statement regarding its desire to keep the HMR in alignment with
international standards obligated the agency not to deviate from those
standards. Petitioner fails to note, however, that language throughout
the preamble to the NPRM and to the final rule indicated that the
intent of the rulemaking was not to incorporate every term of the
international standards, but to ``more fully align the HMR with the
seventh and eighth revised editions of the UN Recommendations. These
proposed changes to the HMR will provide consistency with the
international air and sea requirements * * *.'' (Emphasis added.) See
59 FR 36488 and 59 FR 67390. RSPA further stated in the NPRM that the
proposed regulatory changes are ``proposed to ensure a basic
consistency with many changes contained in the [international
standards].'' (Emphasis added.) 59 FR 36489.
The above statements demonstrate that RSPA did not intend to adopt,
verbatim, every provision of international standards. Furthermore,
evidence of RSPA's intent can be found in the NPRM statement that
``although the eighth revised edition of the UN Recommendations adopted
a quality assurance program for the manufacture of performance
packagings, RSPA is not proposing a formal quality assurance program in
this document.'' 59 FR 36489. There are numerous examples of U.S.
variations from international standards, such as retention of the
combustible liquid hazard classification and exceptions, adoption of a
vibration standard for package testing, the establishment of inhalation
toxicity criteria, and the authorization to continue using plastic
packagings beyond five years from date of manufacture. Consequently,
RSPA's stated desire to maintain general alignment with international
standards does not negate the agency's ability to exercise its own
discretion in certain areas.
In short, RSPA accidentally adopted testing procedures for a
plastic aerosol packaging that is not authorized for use under the HMR.
When RSPA realized its mistake, it acted reasonably and quickly to
ensure that the regulated industry understood that the packaging still
was not authorized. It did so by removing the superfluous language from
the HMR and explaining in a concise general statement the reason for
its action. RSPA's action was rational and well articulated and,
therefore, was not arbitrary and capricious. To grant the petitioner's
request would result in a regulation that would include certain testing
procedures for plastic aerosol containers that are not authorized for
use. The result would be illogical and contrary to our efforts to
clarify the HMR and eliminate obsolete or redundant rules. To grant the
petitioner's request to authorize use of plastic aerosol containers
would require public comment.
Based on the above, RSPA denies petitioner's June 16, 1995 petition
for reconsideration.
Issued in Washington, DC on November 6, 1995, under authority
delegated in 49 CFR part 1.
Ana Sol Gutierrez,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 95-27953 Filed 11-9-95; 8:45 am]
BILLING CODE 4910-60-P
