[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51238-51241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24711]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 172 and 173
[Docket HM-220A; Amdt Nos. 172-150 and 173-258]
RIN 2137-AC59
Periodic Inspection and Testing of Cylinders; Response to
Petitions for Reconsideration, Clarification and Editorial Correction
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; response to petitions for reconsideration,
clarification and editorial correction.
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SUMMARY: On May 28, 1996, RSPA published a final rule under Docket HM-
220A which amended the Hazardous Materials Regulations (HMR; 49 CFR
Parts 171-180) pertaining to the maintenance and requalification of DOT
specification and exemption cylinders used for the transport of
compressed gases in commerce. The intent of these changes was to
enhance public safety by clarifying the regulations for those persons
who perform periodic inspection and testing of these cylinders. This
final rule responds to petitions for reconsideration, further clarifies
the regulations for cylinder retest, and makes minor editorial
corrections.
EFFECTIVE DATE: The effective date of these amendments is October 1,
1996.
FOR FURTHER INFORMATION CONTACT: Theresa Gwynn, telephone (202) 366-
4488, Office of Hazardous Materials Standards, Research and Special
Programs Administration, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION: On May 28, 1996, RSPA published a final rule
under Docket HM-220A (61 FR 26750) that revised the HMR by clarifying
current inspection and retest requirements for compressed gas cylinders
used to transport hazardous materials in commerce. The final rule also
incorporated certain long-standing regulatory interpretations, and
added several new provisions. RSPA received four petitions for
reconsideration of provisions in the final rule. These petitions were
from representatives of compressed gas suppliers and fire extinguisher
manufacturers, including petitions from the National Propane Gas
Association (NPGA) and the Fire Equipment Manufacturers Association
(FEMA). In this document, RSPA responds to these petitions, clarifies
two additional provisions and corrects three editorial errors.
Petitions Granted
Retest Intervals for Fire Extinguishers using CO2
FEMA and another petitioner requested that RSPA reconsider the
language adopted in Sec. 173.34(e)(19)(ii). Both petitioners stated
that the revisions could be easily misconstrued to allow DOT 3A, 3AA,
and 3AL cylinders used as fire extinguishers to be retested at a 12-
year interval ``regardless of their lading'' instead of a 5-year
interval. In addition, they stated that because fire extinguishers
containing carbon dioxide or certain carbon dioxide mixtures may be
corrosive to cylinders, a 12-year retest is insufficient to detect
possible corrosion before an unsafe condition might occur.
It is not RSPA's intent for a cylinder containing a corrosive
extinguishing agent to be granted a 12-year periodic inspection and
retest, nor is it authorized in the final rule. Section 173.34(e)(19)
specifically states that ``[a] DOT specification cylinder used as a
fire extinguisher in compliance with Sec. 173.309 may be retested in
accordance with this paragraph (e)(19).'' Under Sec. 173.309, cylinders
used for fire extinguishers may only contain extinguishing agents that
are nonflammable, non-poisonous, non-corrosive and commercially free
from corroding components, and must be charged with nonflammable,
nonpoisonous, dry gas that has a dew-point at or below minus 46.7
deg.C (minus 52 deg.F) at 101 kPa (1 atmosphere) and is free of
corroding components.
RSPA stated in the preambles to the notice of proposed rulemaking
(60 FR 54008; October 18, 1995) and the final rule that any fire
extinguisher containing a fire extinguishing medium or propellant gas
not meeting the requirements in Sec. 173.309(b) (1) and (2) may not be
shipped under those provisions. Therefore, they do not qualify under
Sec. 173.34(e)(19) for the 12-year retest interval. For greater
emphasis, RSPA is adding Special provision 18, in column 7, for the
entry ``Fire extinguishers containing compressed or liquefied gas'' in
the Hazardous Materials Table. This special provision is added in
Sec. 172.102 and contains the lading restriction currently found in
Sec. 173.309(b). It further provides that any lading not conforming to
these requirements, including mixtures of 30% or more carbon dioxide by
volume, must be described by a proper shipping name other than ``Fire
extinguishers containing compressed or liquefied gas''. In
Sec. 173.309(b) paragraph (b) (1), (2), and (3) are removed, and the
introductory text is revised for consistency with this change.
Computing Wall Stress for Overfill Authorization
In the final rule, RSPA adopted an option in Note 3 of
Sec. 173.302(c)(3) to provide an alternative for the determination of
average wall stress limitation through the computation of the Elastic
Expansion Rejection limit (REE) by using CGA Pamphlet C-5. A petitioner
wrote RSPA in regard to a May 20, 1991, letter of interpretation from
the Office of Hazardous Materials Standards (RSPA) which stated, ``* *
* an elastic expansion rejection limit marked on a cylinder may be used
to comply with Sec. 173.302(c)(3).'' Upon further review, RSPA is
allowing the use of REE values computed in accordance with CGA Pamphlet
C-5 or marked on cylinders by the manufacturer. This change is
incorporated in Note 3.
Petition Denied
Request for Adoption of NPGA Safety Bulletin 118 as an Alternative
Standard for Visual Inspection
In the May 28 final rule, RSPA adopted and updated, as material
incorporated by reference, several Compressed Gas Association (CGA)
Pamphlets. Among these, CGA Pamphlet C-6, ``Standards for Visual
Inspections of Steel Compressed Gas Cylinders'', was updated from the
1984 to the 1993 edition.
The NPGA petitioned RSPA to reconsider the language in
Sec. 173.34(e) (3) and (10), requiring cylinders to be visually
inspected, internally and externally, in accordance with CGA Pamphlet
C-6. NPGA stated:
The present provisions of Sec. 173.34(e)(10) read as follows:
(10) Cylinders made in compliance with the specifications listed
in the table below and used exclusively in the service indicated
may, in lieu of the periodic hydrostatic retest, be given a complete
external visual inspection at the time such periodic retest becomes
due. External visual inspection as described in CGA Pamphlet C-6
will, in addition to the following requirements prescribed herein,
meet the requirements for visual inspection. When this inspection is
[[Page 51239]]
used in lieu of hydrostatic retesting, subsequent * * *
As proposed in the NPRM published in the October 18, 1995
Federal Register, on page 54016, Sec. 173.34(e)(13) would read:
(13) A cylinder made in conformance with a specification listed
in the table in this paragraph (e)(13) and used exclusively in the
service indicated may, instead of a periodic hydrostatic retest, be
given a complete external visual inspection at the time periodic
retest becomes due. External visual inspection in accordance with
CGA Pamphlets C-6 or C-6.1, as applicable, in addition to the other
requirements of this section, meets the requirement for visual
inspection. When this inspection is used instead of hydrostatic
testing, * * *
Both of these provisions carry the same feature--they recognize
CGA Pamphlet C-6 as one means of performing the subject external
visual inspection for requalification of certain cylinders in
specified services, while at the same time allowing for other means
of inspection that will accomplish an inspection of equal detail and
purpose.
However, in the final rule, Sec. 173.34(e)(13) was amended to
read:
(13) A cylinder made in conformance with a specification listed
in the table in this paragraph (e)(13) and used exclusively in the
service indicated may, instead of a periodic hydrostatic retest, be
given a complete external visual inspection at the time periodic
retest becomes due. External visual inspection must be in accordance
with CGA Pamphlets C-6 or C-6.1. When this inspection is used
instead of hydrostatic testing, * * *
As a consequence of this change, which was not published for
public review and comment in the Notice of Propose Rulemaking, CGA
C-6 is now the only recognized method for external visual inspection
of these cylinders for the purposes of requalification under the
provisions of the Hazardous Materials Regulations, precluding any
other valid, equally suitable procedure.
NPGA publishes a safety bulletin presenting an external visual
inspection procedure (Safety Bulletin 118 Recommended Procedures for
Visual Inspection and Requalification of DOT (ICC) Cylinders in LP-
Gas Service) [SB 118-91] for the precise purpose of providing a
valid means of compliance with the provisions of the present
Sec. 173.34(e)(10) regarding requalification of LP-gas cylinders for
continued service. * * *
NPGA strongly objects to the exclusion of SB-118-91 as a valid
means of compliance with the provisions of Sec. 173.34(e)(13) as
amended under HM-220A. Moreover, we object to a substantive
rulemaking change of this kind without the opportunity for public
review and comment.
We respectfully request your reconsideration of this amendment
and either (1) restoration of the relevant wording from the present
Sec. 173.34(e)(10) or from the Notice of Proposed Rulemaking or (2)
adoption of SB 118-91 by reference in Sec. 173.34(e)(13) as an
alternative procedure of equal stature to CGA Pamphlet C-6.
RSPA disagrees with NPGA's understanding of these requirements.
Neither language in Sec. 173.34(e)(10) of Title 49 CFR (parts 100 to
177, revised as of Oct. 1, 1995) or the language in Sec. 173.34(e)(13)
of the notice of proposed rulemaking (60 FR 54016, Oct 18, 1995)
provide for performing an external visual inspection in accordance with
other than the identified CGA pamphlets. RSPA editorially re-worded the
cumbersome text in the final rule for clarity only. No advance notice
of this editorial change was necessary because RSPA only clarified the
provision.
As a part of the review of the NPGA petition, RSPA reviewed NPGA
Safety Bulletin SB 118-91. RSPA found this bulletin not to be
equivalent to the CGA pamphlets in detail or scope, particularly for
the visual inspection of compressed gas cylinders. RSPA believes use of
the NPGA bulletin would not achieve the same level of safety as
provided in the CGA pamphlets. Therefore, both of the NPGA requests are
denied.
RSPA did make an editorial error, however, in the identification of
these CGA pamphlets in the final rule. In the final rule, section
173.34(e)(13) was revised to read, ``[e]xternal visual inspection must
be in accordance with CGA Pamphlets C-6 or C-6.1.'' See 61 FR 26762.
Both pamphlets contain procedures for performing visual inspections.
Pamphlet C-6 contains requirements for steel cylinders and C-6.1
contains requirements for high pressure aluminum cylinders. Pamphlet C-
6.3 contains requirements for the visual inspection of low pressure
aluminum cylinders. The table in paragraph (e)(13) does not list any
high pressure aluminum cylinders, but does list a DOT 4E which is a low
pressure aluminum cylinder. Therefore, paragraph (e)(13) is corrected
to reference CGA Pamphlets C-6 and C-6.3 in this final rule. For this
same reason, in Sec. 173.34(e)(10), the reference to CGA Pamphlet C-6.1
is corrected to read C-6.3. Finally, in Sec. 173.34(e)(19)(ii), the
parenthetical reference to Sec. 173.36 is corrected to read
Sec. 178.36.
Clarification
Must a Visual Examiner Who Does Not Hold a Registered Inspector Number
(RIN) Maintain a Copy of CGA Pamphlet C-6 on file?
Since the publication of the final rule, several propane cylinder
retailers who conduct only visual inspections of their cylinders have
inquired if they must have copies of CGA Pamphlets C-6 and C-6.3 on
file when they perform visual inspections. The answer is no, a person
who only performs visual inspections is not required to have a RIN or
maintain a copy of this pamphlet. However, the person must have been
trained and be able to perform the visual inspections in accordance
with the appropriate CGA Pamphlet either C-6 or C-6.3.
Although the HMR allow an external visual inspection without the
person having a copy of the CGA pamphlets on hand, RSPA discourages
this practice. RSPA recommends that a hazmat employer have a copy of
all training materials that each hazmat employee is expected to use in
the performance of his or her duties, including technical materials.
However, as adopted in Sec. 173.34(e)(2)(v)(C) of the May 28 final
rule, an approved retester with a RIN shall maintain, at each location
at which it inspects, retests or marks cylinders, copies of each CGA
pamphlet incorporated by reference in Sec. 171.7 that applies to the
retester's cylinder inspection, retesting and marking activities at
that location. Finally, the regulated community should be aware that
CGA has submitted a petition for rulemaking (P-1090) requesting that
any person who only performs visual inspections and marks the cylinder
with the inspection date must possess a current RIN. This issue will be
addressed in a future rulemaking.
Rulemaking Analyses and Notices
1. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. The rule is not
considered significant under the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034). The economic impact of
this rule is minimal to the extent that preparation of a regulatory
evaluation is not warranted.
2. Executive Order 12612
This May 28, 1996 final rule, as amended herein, was analyzed in
accordance with the principles and criteria contained in Executive
Order 12612 (``Federalism''). Federal law expressly preempts State,
local, and Indian tribe requirements applicable to the transportation
of hazardous material that cover certain subjects and are not
``substantively the same'' as the Federal requirements. 49 U.S.C.
5125(b)(1). These covered subjects are:
(A) The designation, description, and classification of hazardous
material;
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
[[Page 51240]]
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements respecting the number,
contents, and placement of those documents;
(D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(E) The design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or a container
which is represented, marked, certified, or sold as qualified for use
in transporting hazardous material.
This final rule preempts State, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' (see 49 CFR 107.202(d)) as the Federal
requirements. RSPA lacks discretion in this area, and preparation of a
federalism assessment is not warranted.
Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a
regulation concerning any of the covered subjects, DOT must determine
and publish in the Federal Register the effective date of Federal
preemption. The effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance. RSPA determined that the effective
date of Federal preemption for these requirements in the June 5, 1996
final rule would be October 1, 1996. The effective date of Federal
preemption for the changes made in this final rule will be December 30,
1996.
3. Regulatory Flexibility Act
This final rule responds to petitions for reconsideration and
agency review. It is intended to make editorial and technical
corrections, provide clarification of the regulations and relax certain
requirements. Therefore, I certify that this final rule will not have a
significant economic impact on a substantial number of small entities.
4. Paperwork Reduction Act
There are no new information collection requirements in this final
rule. The May 28, 1996 final rule contains information collection
requirements, in Sec. 173.34 pertaining to the testing, inspection and
marking of cylinders, that were approved by the Office of Management
and Budget under OMB control number 2137-0022 and expires August 31,
1999.
5. Regulation Identifier Number
A regulation identifier number is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The regulation identifier number
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
List of Subjects
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Marking, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
In consideration of the foregoing, 49 CFR parts 172 and 173 are
amended as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for Part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 172.101 [Amended]
2. In the Hazardous Materials Table for the entry ``Fire
extinguishers containing compressed or liquefied gas'', in Column (7),
Special Provision ``18'' is added.
Sec. 172.102 [Amended]
3. In Sec. 172.102 (c)(1), Special Provision 18 is added to read as
follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
18 This description is authorized only for fire extinguishers
listed in Sec. 173.309(b) of this subchapter meeting the following
conditions:
a. Each fire extinguisher may only have extinguishing contents
that are nonflammable, non-poisonous, non-corrosive and commercially
free from corroding components.
b. Each fire extinguisher must be charged with a nonflammable,
non- poisonous, dry gas that has a dew-point at or below minus 46.7
deg.C (minus 52 deg.F) at 101kPa (1 atmosphere) and is free of
corroding components, to not more than the service pressure of the
cylinder.
c. A fire extinguisher may not contain more than 30% carbon
dioxide by volume or any other corrosive extinguishing agent.
d. Each fire extinguisher must be protected externally by
suitable corrosion-resisting coating.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTSAND
PACKAGINGS
4. The authority citation for Part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 173.34 [Amended]
5. In Sec. 173.34(e), as revised at 61 FR 26758, effective October
1, 1996, the following changes are made:
a. In paragraphs (e)(10) and (e)(13), the wording ``CGA Pamphlets
C-6 or C-6.1'' is removed and ``CGA Pamphlets C-6 or C-6.3'' is added
in its place.
b. In paragraph (e)(19)(ii), ``Sec. 173.36'' is revised to read
``Sec. 178.36''.
6. In Sec. 173.34, as amended at 61 FR 26758, effective October 1,
1996, paragraph (e)(19) introductory text is revised to read as
follows:
Sec. 173.34 Qualification, maintenance and use of cylinders.
* * * * *
(e) * * *
(19) Cylinders used as fire extinguishers. Only DOT specification
cylinders used as fire extinguishers and meeting Special Provision 18
in Sec. 172.102(c)(1) of this subchapter may be retested in accordance
with this paragraph (e)(19).
* * * * *
7. In Sec. 173.302, in paragraph (c)(3), as amended at 61 FR 26764,
effective October 1, 1996, Note 3 following the table is revised to
read as follows:
Sec. 173.302 Charging of cylinders with nonliquefied compressed gases.
* * * * *
(c) * * *
(3) * * *
Note 3: Compliance with average wall stress limitation may be
determined through computation of the elastic expansion rejection
limit in accordance with CGA Pamphlet C-5 or through the use of the
manufacturer's marked elastic expansion rejection limit (REE) on the
cylinder.
* * * * *
8. In Sec. 173.309, as amended at 61 FR 26764, effective October 1,
1996, paragraph (b) is revised to read as follows:
Sec. 173.309 Fire extinguishers.
* * * * *
(b) Specification 3A, 3AA, 3E, 3AL, 4B, 4BA, 4B240ET or 4BW
(Secs. 178.36, 178.37, 178.42, 178.46, 178.50, 178.51, 178.55 and
178.61 of this subchapter)
[[Page 51241]]
cylinders are authorized for use as fire extinguishers.
Issued in Washington, DC on September 23, 1996, under authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-24711 Filed 9-30-96; 8:45 am]
BILLING CODE 4910-60-P
