Implementation of the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions

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]

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