[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]
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