dissenting:
I differ from the majority in one critical respect: I do not agree that simply by improperly packaging hazardous materials and having them delivered by truck within the city of Houston, NL can be said to have “caused” hazardous materials to be transported by air. As I believe the FAA’s order imposing liability on NL exceeds the scope of the Hazardous Materials Transportation Act, I respectfully dissent.
Section 105(a) of the Act reads, in relevant part, as follows:
The Secretary may issue ... regulations for the safe transportation in commerce of hazardous materials. Such regulations shall be applicable to any person who transports, or causes to be transported or shipped, a hazardous material, or who manufactures ... a package or container which is ... sold by such person for use in the transportation in commerce of certain hazardous materials.
49 U.S.C.App. § 1804(a) (1982). The statutory scheme is clear. The Act identifies three categories of persons to whom the Secretary’s regulations are to apply. It follows, therefore, that a person may not be found in violation of the regulations unless he has transported hazardous materials, or caused them to be transported or shipped, or manufactured and sold containers for use in such transportation. The majority effectively concludes that NL Industries caused the intended transportation to Bolivia of the hazardous chemicals purchased by YPFB, and it is this conclusion with which I disagree.
In the decision here under review, the FAA found NL liable for “knowingly offering seventy-nine drums of hazardous mate*146rials for transportation by air when the drums were not properly [packaged etc.],” in violation of its regulations. In affirming the FAA’s findings, the majority asserts that the implementing regulation, which provides in relevant part that “No person may offer ... [improperly packaged] hazardous material for transportation in commerce,” 49 C.F.R. § 171.2(a) (1988) (emphasis added), is a reasonable interpretation of the Secretary’s authority under section 105(a) of the Act to issue regulations applicable to any person who “causes [hazardous materials] to be transported or shipped.” 49 U.S.C.App. § 1804(a) (emphasis added).
The majority’s analysis is based on the mistaken assumption that the words “cause” and “offer” are coextensive. Someone who delivers goods to a carrier for shipment in accordance with another person’s instructions may well be said to have offered them for transportation. It does not follow, however, that that person has caused the goods to be shipped from the point of delivery to their ultimate destination. While the Secretary enjoys broad discretion in framing the regulations required to implement the Act, he may not apply a regulation in a manner that enlarges its scope beyond that of its enabling statute. E.g., Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 103 (2d Cir.1981). Thus it is impermissible to apply section 171.2(a) of the regulations to someone who “offers” hazardous materials for transportation but who has not “caused” them to be transported.
To explain my position more precisely, I turn to the meaning of the word “cause.” As there are no indications here that Congress intended otherwise, we may safely assume that the common usage of the word applies. E.g., Inner City Broadcasting Cory. v. Sanders, 733 F.2d 154, 158 (D.C.Cir.1984). Webster’s defines “cause” in relevant part as “a person, thing, fact, or condition that brings about an effect or that produces or calls forth a resultant action or state.” Webster’s Third New International Dictionary 356 (1981). Similarly, American Heritage defines it as follows: “1. a. Something that produces an effect, result, or consequence, b. The person, event, or condition responsible for an action or result.” American Heritage Dictionary 249 (2d College ed. 1985). (By comparison, among the relevant definitions of the word “offer” are “to present for acceptance or rejection,” to “tender” or “proffer.” Webster’s at 1566. Plainly, “offer” and “cause” are not synonymous.)
Applying the common meaning of the word “cause” to the instant case, I conclude that NL cannot be said to have caused — i.e., to have brought about or been responsible for — the intended transportation by air of the chemicals purchased from NL. That burden must lie with YPFB. It was YPFB that sent purchase orders to NL instructing it to deliver the goods to YPFB’s agent, J.V. Pack; it was YPFB that arranged for J.V. Pack to receive the goods, check the inventory, prepare the necessary documentation, and ship the goods by air freight to Bolivia. NL, on the other hand, was neither asked, nor did it undertake, to arrange for the shipment of the goods to their ultimate destination in Bolivia. It did not decide the mode of transportation (sea or air) or select the carrier. Nor did it engage in the loading or storage of the chemicals incident to the shipment that would have brought it within the scope of 49 U.S.C.App. § 1802.
While the majority emphasizes that NL was aware that the goods were to be sent by air, that it was instructed to prepare them for air shipment, and that it signed a Shipper’s Declaration, these factors were ancillary to, rather than the cause of, the intended shipment by air. Indeed, NL’s Shipper’s Declarations specify the consignee as “[YPFB], 3334 Richmond, Suite 105, Houston, Texas,” confirming that the only shipment for which NL was responsible went no further than across town. Although NL no doubt caused goods destined for air shipment to Bolivia to be mispack-aged and mislabeled, the only transportation that NL could be said to have caused was from its plant in Houston to the Flying Tiger and J.V. Pack facilities, also in Houston. This, however, was not the act for which the FAA found NL to be liable, and *147it is axiomatic that we cannot affirm an agency’s decision on any grounds other than those upon which the agency acted. See, e.g., SEC v. Chenery, 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Reservation Tele. Co-op v. FCC, 826 F.2d 1129, 1134 (D.C.Cir.1987).
By blurring the plain language of the statute (in part by issuing an ambiguous regulation) and applying its regulations more broadly than the statute permits, the FAA gives section 1804(a) an uncertain scope while at the same time failing to find liable the one party that was clearly responsible for the intended transportation of the chemicals to Bolivia. As the FAA’s order imposing liability on NL exceeds the permissible scope of the Act, I would grant the petition for review and reverse the FAA’s decision.