170.27 170.29

comment.

Consideration of comments received. Additional rule-making proceedings. 170.31 Hearings.

170.33 Adoption of final rules. 170.35 Petition for rehearing or reconsideration of rule.

AUTHORITY: The provisions of this Part 170 issued under 74 Stat. 808-811, sec. 9, 80 Stat. 944, secs. 601, 610, 902 (h), 72 Stat. 775, 780, 784; 18 U.S.C. 831-835, 49 U.S.C. 1421, 1430, 1472 (h), 1657, unless otherwise noted.

SOURCE: The provisions of this Part 170 appear at 33 F.R. 8279, June 4, 1968, unless otherwise noted.

Subpart A-General

§ 170.1 Applicability.

(a) This part prescribes general rulemaking procedures that apply to the issue, amendment, and repeal of hazardous materials regulations under title 18, U.S.C. 831-835 and title VI and section 902(h) of the Federal Aviation Act of 1958 (49 U.S.C. 1421-1430 and 1472(h)). The regulations issued under those authorities are designated as the "Hazardous Materials Regulations" of the Department of Transportation.

(b) The Hazardous Materials Regulations Board, established by Department of Transportation Order 1100.11, dated July 27, 1967 (hereinafter referred to as the "Board") is composed of the Assistant Secretary for Research and Technology as Chairman; and the Commandant, U.S. Coast Guard, Federal Aviation Administrator, Federal Highway Administrator, and Federal Railroad Administrator, or their designees, as

members. The General Counsel of the Department is the legal adviser to the Board and the Director of the Office of Hazardous Materials is the Secretary to the Board.

(c) The signature of the Board member issuing a notice or adopting a regulation for a mode of transportation determines the applicability of that notice or rule to that mode of transportation. Where more than one mode is involved, the requisite number of authorized signatures is included.

(d) Records of the Board relating to rule-making proceedings, including the regulatory docket maintained under § 170.7, are available for inspection as provided in Part 7 of the regulations of the Secretary of Transportation (Part 7 of this title).

§ 170.3

Initiation of rule making.

The Board initiates rule making on the motion of any of its members. The Board also considers the recommendations of other agencies of the U.S. Government and of interested persons.

§ 170.5 Participation in rule-making proceedings.

Any person may participate in rulemaking proceedings by submitting written information or views. The Board may also allow any person to participate in additional rule-making proceedings, such as informal meetings or hearings, held with respect to any rule.

§ 170.7 Regulatory docket.

Records of the Board concerning rulemaking actions, including notices of proposed rule making, comments received in response to those notices, petitions for rule making (including special permits for waiver or exemption), petitions for rehearing or reconsideration, grants and denials of special permits, denials of petitions for rule making, records of additional rule-making proceedings under § 170.29 and final rules are maintained in current docket form in the Department.

Subpart B-Petitions for Rule Making § 170.11 Filing of petitions for rule making.

(a) Any person may petition the Board to issue, amend, or repeal a rule.

(b) Each petition filed under this section must

(1) Be submitted, in duplicate, to the Secretary, Hazardous Materials Regula

tions Board, Department of Transportation, 400 Sixth Street SW., Washington, D.C. 20590.

(2) Set forth the text or substance of the rule or amendment proposed, or specify the rule that the petitioner seeks to have repealed, as the case may be.

(3) Explain the interest of the petitioner in the action requested.

(4) Contain information to support the action sought.

§ 170.13 Filing of petitions for special

permits for waivers or exemptions.

(a) Any person may petition the Board for a special permit for a waiver or exemption from any provision of Parts 170-189 of this chapter or Part 103 of Title 14 (14 CFR Part 103).

(b) Each petition must be submitted in duplicate to the Secretary, Hazardous Materials Regulations Board, Department of Transportation, 400 Sixth Street SW., Washington, D.C. 20590, and contain the following information:

(1) The regulatory provisions involved.

(2) The justification for the permit, including any reasons why the regulations are not appropriate, why the public interest would be served by the proposal, and the basis upon which the proposal would provide an adequate and reasonable degree of safety.

(3) A detailed description of the proposal, including when appropriate, drawings, plans, calculations, procedures, test results, previous approvals or permits, a list of specification containers, if any, to be used, a list of modified specification containers, if any, to be used, and a description of the modifications, and any other supporting information.

(4) The chemical name, common name, hazard classification, form, quantity, properties, and characteristics of the material covered by the proposal, including composition and percentage (specified by volume or weight) of each chemical, if a solution or mixture.

(5) Any relevant shipping or accident experience with the container proposed.

(6) The proposed mode of transportation, and any special transportation controls needed.

(7) The name, address, and telephone number of the petitioner, and that of the motor carrier if a tank motor vehicle is to be used.

(8) A statement or recommendation regarding any changes to the regulations which would be desirable to obviate the need for similar special permits.

(c) Unless there is good reason for priority treatment, each petition is considered in the order in which it is received. To permit timely consideration, petitions should be submitted at least 45 days before the requested effective date. § 170.15 Processing of petitions for rule making and special permits.

(a) General: The Board considers the information submitted by the petitioner and any other available pertinent information. Unless otherwise directed by the Board, no public hearing, argument, or other proceeding is held directly on a petition before its disposition.

(b) Grants: If the Board finds that the petitioner's proposal would provide adequate safety and is otherwise justified, the Board issues the special permit under this subpart or initiates rule-making action under Subpart C of this part.

(c) Denials: If the Board finds the petitioner's proposal would not provide adequate safety or is not otherwise justified, the Board denies the petition. The Board will inform the petitioner of the basis for the denial.

(d) The treatment of confidential or proprietary material submitted by any petitioner is governed by § 7.59 of this title.

§ 170.21

Subpart C-Procedures

General.

(a) Unless the Board finds, for good cause, that notice is impracticable, unnecessary, or contrary to the public interest (and incorporates the finding and a brief statement of the reasons therefor in the preamble to the rule), a notice of proposed rule making is issued and interested persons are invited to participate in the rule-making proceedings with respect to each substantive rule. Normally, the Board will provide a minimum of 30 days for comment on each notice.

(b) Unless the Board determines that notice and public rule-making proceedings are desirable, interpretive rules, general statements of policy, and rules relating to organization, procedure, or practice are prescribed as final without notice or other public rule-making proceedings

(c) In its discretion, the Board may invite interested persons to participate in the rule-making proceedings described in § 170.29.

§ 170.23 Contents of notices.

(a) Each notice of proposed rule making is published in the FEDERAL REGISTER, unless all persons subject to it are named therein and are served with a copy.

(b) Each notice, whether published in the FEDERAL REGISTER or served, includes

(1) A statement of the time, place, and nature of the proposed rule-making proceeding;

(2) A reference to the authority under which it is issued;

(3) A description of the subjects and issues involved or the substance or terms of the proposed rule;

(4) A statement of the time for the submission of written comments and the number of copies required; and

(5) A statement of how and to what extent interested persons may participate in the proceeding.

§ 170.25

Petitions for extension of time

to comment. (a) Any person may petition the Board for an extension of time to submit comments in response to a notice of proposed rule making. The petition must be submitted in duplicate not later than 7 days before expiration of the time stated in the notice. The filing of the petition does not automatically extend the time for petitioner's comments.

(b) The Board grants the extension only if it is in the public interest and the petitioner shows good cause for the extension. If an extension is granted, it is granted to all persons by publication in the FEDERAL REGISTER. § 170.27

ceived.

Consideration of comments re

All timely comments are considered before final action is taken on a rule-making proposal. Late filed comments may be considered so far as practicable. § 170.29

Additional rule-making pro

ceedings.

After issuing a notice of proposed rule making in any particular case, the Board may initiate any further rule-making proceedings that it finds necessary or desirable. For example, it may invite interested persons to present oral argu

(a) Sections 556 and 557 of title 5, United States Code (relating to the conduct of hearings required to be on the record) do not apply to hearings held under this part. As a factfinding proceeding, each hearing is nonadversary and there are no formal pleadings or adverse parties. Any rule issued in a case in which a hearing is held is not necessarily based exclusively on the record of the hearing.

(b) The Board designates one or more of its members or a representative to conduct any hearing held under this part. The General Counsel or a member of his staff serves as legal officer at the hearing.

§ 170.33

Adoption of final rules.

If the Board adopts a rule, it is published in the FEDERAL REGISTER, unless all persons subject to it are named and are served with a copy.

§ 170.35 Petition for rehearing or reconsideration of rule.

(a) Any interested person may petition the Board for reconsideration of any rule issued under this part. Such a petition must be transmitted, in duplicate, to the Secretary, Hazardous Materials Regulations Board, Department of Transportation, 400 Sixth Street SW., Washington, D.C. 20590, at least 10 days before the effective date of the rule. However, in any case in which a rule becomes effective in less than 15 days after issuance, the petition may be filed at any time before the effective date. Petitions that are not timely filed will be considered as petitions for rule making filed under § 170.11. The petition must contain a brief statement of the complaint and an explanation as to why compliance with the rule is not possible, is not practicable, is unreasonable, or is not in the public interest.

(b) If the petitioner requests the consideration of additional facts, he must state the reason they were not presented to the Board within the allotted time.

(c) Unless the Board otherwise provides, the filing of a petition under this section does not stay the effectiveness of a rule.