[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65188-65195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32385]
[[Page 65187]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171
Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed
Gas Service; Response To Petitions for Reconsideration; Editorial
Revisions; and Rules Clarification; Final Rule
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 /
Rules and Regulations
[[Page 65188]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. RSPA-97-2133 (HM-225)]
RIN 2137-AC97
Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service; Response To Petitions for Reconsideration;
Editorial Revisions; and Rules Clarification
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; response to petitions for reconsideration;
editorial revisions; and rules clarification.
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SUMMARY: On August 18, 1997, RSPA published a final rule adopting
certain safety standards applicable to cargo tank motor vehicles in
liquefied compressed gas service. In response to petitions for
reconsideration filed by Farmland Industries, Inc. (Farmland), The
Fertilizer Institute (TFI), and AmeriGas Propane, L.P. (AmeriGas), RSPA
is revising a requirement concerning the daily pressure testing of
transfer hoses on these cargo tank motor vehicles, and the agency is
revising Sec. 171.5(a) for consistency with Sec. 178.337-11(a)(1)(i) by
removing a hose rupture (i.e., incomplete separation) as a condition
that causes the internal self-closing stop valve to function. This
action grants certain petitions for reconsideration of the final rule
pertaining to effective and practical standards to assure the integrity
of transfer hoses used in unloading operations. Also, in this final
rule, RSPA is granting the request by Farmland and TFI to extend the
expiration of the final rule requirements for four months, to July 1,
1999. RSPA is denying the request by AmeriGas for an immediate stay of
the provisions of Sec. 171.5(a)(1)(iii) and the AmeriGas request for
reconsideration of: The provision in Sec. 171.5(c) setting forth an
expiration date for the final rule requirements; and RSPA's
interpretation of the attendance requirements in Sec. 177.834(i) that a
qualified person must always maintain an unobstructed view of the cargo
tank. Additionally, this action makes editorial revisions and clarifies
certain provisions adopted in the final rule.
DATES: This final rule is effective December 10, 1997.
FOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of
Hazardous Materials Technology, RSPA, Department of Transportation, 400
Seventh Street, S.W., Washington, DC 20590-0001, telephone (202) 366-
4545, or Nancy Machado, Office of the Chief Counsel, RSPA, Department
of Transportation, 400 Seventh Street, S.W., Washington, DC 20590-0001,
telephone (202) 366-4400.
SUPPLEMENTARY INFORMATION:
I. Background
On August 18, 1997, RSPA published a final rule under Docket No.
RSPA-97-2133 (HM-225) [62 FR 44038]. The final rule revised and
extended requirements published in an interim final rule (IFR) on
February 19, 1997, concerning the operation of cargo tank motor
vehicles (CTMVs) in certain liquefied compressed gas service. The final
rule requires a specific marking on affected CTMVs and requires motor
carriers to comply with additional operational controls intended to
compensate for the failure of passive emergency discharge control
systems to function as required by the Hazardous Materials Regulations
(HMR; 49 CFR Parts 171-180). The operational controls specified in the
final rule provide an alternative to compliance with Sec. 178.337-
11(a)(1)(i) and are intended to ensure an acceptable level of safety
while the industry and government continue to work to develop an
emergency discharge control system that effectively stops the discharge
of hazardous materials from a cargo tank if any attached hose or piping
is separated.
Petitions for reconsideration of the August 18, 1997 final rule
were filed by The National Propane Gas Association (NPGA), Farmland
Industries, Inc. (Farmland), The Fertilizer Institute (TFI) and jointly
by Ferrellgas, L.P., Suburban Propane, L.P., AmeriGas Propane, L.P.
(AmeriGas), Agway Petroleum Corporation, Cornerstone Propane Partners,
L.P., and National Propane, L.P. On September 26, 1997, Ferrellgas,
L.P., Suburban Propane, L.P., Agway Petroleum Corporation, Cornerstone
Propane Partners, L.P., and National Propane, L.P. withdrew their names
from the jointly-filed petition for reconsideration. Petitioner
AmeriGas, however, continues to seek relief through the September 17,
1997 petition for reconsideration. On October 2, 1997, NPGA withdrew
its petition for reconsideration. On November 5, 1997, National Private
Truck Council (NPTC) filed a petition for reconsideration. Although the
petition was filed by NPTC after the close of the petition period, and
RSPA has not accepted the petition, all NPTC's issues have been
considered since NPTC raised issues identical to those raised by other
petitioners.
Petitioners Farmland and TFI seek reconsideration of two provisions
of the August 18, 1997 final rule. Specifically, they request
reconsideration of the requirement in Sec. 171.5(a)(1)(i) that a
transfer hose be subjected to full transfer pressure before commencing
the first transfer each day. They also ask RSPA to reconsider the
expiration date of the August 18, 1997 final rule requirements; they
request a four-month extension of the expiration date to July 1, 1999.
AmeriGas seeks: (1) Reconsideration and an immediate stay of the
requirement in Sec. 171.5(a)(1)(iii) that the qualified person
unloading a CTMV promptly activate the internal self-closing stop valve
and promptly shut down all motive and auxiliary power in the event of
an unintentional release of lading to the environment during transfer;
(2) immediate withdrawal of RSPA's interpretation of its long-standing
attendance requirements in Sec. 177.834(i) pending further rulemaking
after notice and comment; (3) withdrawal of the expiration date in
Sec. 171.5(c); (4) deletion of the word ``rupture'' as it appears in
Sec. 171.5(a); and (5) withdrawal of the requirement in
Sec. 171.5(a)(1)(i) that the transfer hose be subjected to full
transfer pressure before commencing the first transfer each day.
II. Petitions Granted
A. Daily Pressure Testing of Transfer Hoses
In Sec. 171.5(a)(1)(i), RSPA required that a transfer hose be
subject to full transfer pressure before the first unloading of product
each day. This provision applied to all CTMVs operating under the terms
of the temporary regulation specified in Sec. 171.5.
Petitioners assert that, because most large CTMVs (``transports,''
typically used for bulk plant deliveries) do not have a separate back-
to-tank product bypass line, energizing the pump when the receiving
tank's liquid shutoff valve is closed may damage the pump vanes, result
in failure of the shaft seals and other components, and place high
torsional loads on the power take-off (PTO) drive shaft.
In addition, petitioners state that no additional safety measures
are needed for small CTMVs (``bobtails,'' typically used for local
deliveries) because they are generally equipped with a separate back-
to-tank product bypass valve. Petitioners state that, in the process of
preparing lines for product transfer from a small CTMV, the full length
of transfer hose is charged to pump discharge
[[Page 65189]]
pressure, thereby providing an opportunity to prove the integrity of
the transfer system prior to each delivery.
Recognizing the merit of the petitioners' comments regarding the
transfer hose pressure standard adopted in the final rule, RSPA
published an advisory guidance that communicated the agency's agreement
with the petitioners' claim that some cargo tank pumping systems are
not capable of safely pumping against a closed product valve without
being damaged (62 FR 49171; September 19, 1997) . Therefore,
Sec. 171.5(a)(1)(i) is revised to allow an operator to determine the
leakproofness of a discharge system (including hose) by requiring that
the pressure in the discharge system reach at least equilibrium with
the pressure inside the cargo tank prior to transfer. After the
operator verifies leakproofness of the discharge system, delivery may
commence.
RSPA is also amending Sec. 171.5(a)(1)(i) by removing the wording
``and equipment'' from the third sentence to clarify that only the
piping, hose and hose fittings must be tested daily. There is no
requirement to test the entire cargo tank on a daily basis.
B. Hose Separation Versus Hose Rupture
Petitioner AmeriGas notes RSPA's use of the word ``rupture[d]'' in
Sec. 171.5(a) with respect to comparable requirements in Sec. 178.337-
11(a)(1)(i) concerning operation of the internal self-closing stop
valve. The petitioner states that the word ``rupture[d]'' is more
commonly used to denote a ``leak or partial failure'' rather than an
actual separation, thus creating an undesirable potential for
confusion. Therefore, AmeriGas requests that the word ``rupture[d]'' be
stricken from the regulatory language.
RSPA agrees that the word ``ruptured'' could be construed as adding
new meaning to requirements pertaining to the emergency operation of
the internal self-closing stop valve that was not intended in the
development of the final rule. Therefore, Sec. 171.5(a) is amended by
removing the wording ``ruptured or'' to make this provision consistent
with requirements in Sec. 178.337-11(a)(1)(i).
C. March 1, 1999 Expiration Date of the Temporary Final Rule
Petitioners TFI and Farmland request that RSPA reconsider the March
1, 1999 expiration date of the requirements in Sec. 171.5. The
petitioners request a four-month extension of the alternative
requirements in Sec. 171.5--until July 1, 1999--to avoid expiration of
the requirements at the beginning of the fertilizer industry's peak
delivery season.
RSPA is granting a request by TFI and Farmland to extend the
expiration date until July 1, 1999. This decision is based on RSPA's
understanding that industry will continue to make good faith efforts in
developing an emergency discharge control system that offers an equal
or higher level of safety as that in longstanding provisions in
Sec. 178.337-11(a)(1)(i).
III. Petitions Denied
A. Prompt Activation of the Internal Self-Closing Stop Valve
In its petition, AmeriGas contends that it is impossible to achieve
immediate full compliance with the requirement in Sec. 171.5(a)(1)(iii)
that a qualified person unloading a small CTMV promptly activate the
internal self-closing stop valve and promptly shut down all motive and
auxiliary power equipment if there is an unintentional release of
lading to the environment during transfer. AmeriGas claims this rule
constitutes a new operator attendance requirement that can only be
satisfied by using remote-controlled equipment that is not currently in
service on more than an experimental basis and that such equipment
cannot be put into service in less than a matter of months.
In the February 1997 emergency interim final rule (IFR), RSPA first
adopted additional requirements for the person who attends the
unloading of a CTMV to be within arm's reach of a means for closure
(emergency shut-down device) of the internal self-closing stop valve or
other device that will immediately stop the discharge of product from
the cargo tank [62 FR 7643, February 19, 1997]. Use of an ``electro-
mechanical'' device as a means of closure was discussed in that rule.
Based on comments to the IFR, RSPA revised Sec. 171.5(a)(1)(iii)(C), in
the August final rule, to set forth three ways to achieve prompt
stoppage of lading discharge from the cargo tank by: (1) complying with
the requirements in Sec. 178.337-11(a)(1)(i); (2) using a qualified
person positioned within arm's reach of the mechanical means of closure
of the internal self-closing stop valve throughout the unloading
operation, except during the short period necessary to engage or
disengage the motor vehicle PTO or other mechanical, electrical, or
hydraulic means used to energize the pump and other components of a
cargo tank's discharge system; or (3) using a remote-controlled system
that is capable of stopping the transfer of lading by use of a
transmitter carried by a qualified person unloading the cargo tank.
RSPA notes that the NPGA special task force, organized in part to
develop plans to provide for continued safe operation of existing
propane cargo tanks, concentrated much of its efforts on development of
remote-controlled devices that may be activated by the person attending
an unloading operation [comments of Mr. McHenry, NPGA, June 23, 1997
public meeting]. A representative of the NPGA special task force
reported progress on the development of remote-controlled devices at a
June 23, 1997 public meeting [comments of Mr. McHenry, NPGA].
Petitioner AmeriGas also provided a report on its progress in
developing an effective, low-cost remote-controlled system using radio
frequency technology [comments of Mr. McEnroe, AmeriGas, June 23, 1997
public meeting transcript, pages 5, 45, 56, and 57]. AmeriGas provided
RSPA with an update on its progress in a November 13, 1997 meeting. The
NPGA's July 24, 1997 petition for rulemaking (P-1346) calls for RSPA to
adopt a new provision in Sec. 178.337-11(a)(1)(iii) for a variety of
systems that are capable of closing the internal liquid discharge valve
by remote means.
The public record contains favorable accounts by several propane
dealers who have installed remote-controlled systems on their fleets of
CTMVs [comments of Mr. Schuler, REMTRON, June 23, 1997 public meeting
transcript, pages 59 and 60; comments of Mr. Stillwaggon, H.R. Weaver
Co.; and comments of Mr. McEnroe, AmeriGas, September 30, 1997 public
meeting transcript, pages 42 and 61, respectively].
Industry representatives have stated that they have had good
results with using radio-frequency, remote-controlled systems [comments
of Mr. McEnroe, AmeriGas, public meeting transcript, June 23, 1997,
page 46; Dr. Coady, Hick's Gas, June 23, 1997 public meeting
transcript, pages 92 and 102]. A representative of Hicks Gas, one of
the larger independent marketers of propane, stated that his company
has been developing and refining remote-control shutdown systems on
some of its trucks for the past three years [comments of Dr. Coady,
Hick's Gas, June 23, 1997 public meeting transcript, page 92].
During two public meetings (June 23, 1997 and September 30, 1997)
industry representatives presented information on radio frequency,
remote-controlled systems, some with basic features and others with
more sophisticated applications, that can be used on most
[[Page 65190]]
CTMVs. Additionally, they represented that the installation
instructions for these systems are simple enough that a fleet mechanic
who has a working knowledge of a vehicle's air and electrical systems
generally has the experience and tools necessary to install and proof-
test a system within a period of two or three hours.
The advantage of a remote-controlled device has been demonstrated
during an incident involving a propane release on November 3, 1997 near
Udina, Illinois. The driver, using a remote-controlled device, promptly
activated closure of the internal self-closing stop valve without
ignition of the propane.
RSPA does not agree that operators of CTMVs have no practical means
of compliance. The public record contains information that some
operators began installing remote-controlled systems shortly after
issuance of the February 19, 1997 interim final rule. In addition, the
Federal Highway Administration's (FHWA) compliance policy emphasizes
increased awareness about the rule and its safety benefits, as opposed
to immediate enforcement. If a company shows good faith efforts to
comply with the provisions of Sec. 171.5, FHWA's policy is to not
pursue civil penalty enforcement actions.
Therefore, based on the above information, this part of the
AmeriGas petition for reconsideration of the final rule is denied.
RSPA believes there is a need to clarify that while the first
sentence of Sec. 171.5(a)(1)(iii)(C) allows use of a remote-controlled
system to promptly activate the internal self-closing stop valve in the
event of an unintentional discharge, the second sentence provides
limited relief from the attendance requirements in Sec. 177.834(i)(3).
Specifically, Sec. 177.834(i)(3) requires a qualified person who is
attending the unloading of a cargo tank to be awake, have an
unobstructed view of the cargo tank, and be within 25 feet of the cargo
tank at all times during unloading. Therefore, the second sentence in
Sec. 171.5(a)(1)(iii)(C) is revised to clarify that where a remote-
controlled system is used, the attendance requirements in
Sec. 177.834(i)(3) are satisfied when the qualified person attending is
awake, is carrying a transmitter that can activate the closure of the
internal self-closing stop valve, remains within the operating range of
the transmitter, and maintains an unobstructed view of the cargo tank
when the internal self-closing stop valve is open.
Also, Sec. 171.5(a)(1)(iii)(B) is revised to clarify that a
qualified person must be positioned within arm's reach of a mechanical
means of closure for the internal self-closing stop valve only when
this valve is open, except for the short duration necessary to engage
or disengage the motor vehicle PTO or other mechanical, electrical or
hydraulic means used to energize the pump and other components of a
cargo tank motor vehicle's discharge system. All of these functions
occur at or immediately adjacent to the cargo tank in proximity to a
means for closure of the internal self-closing stop valve.
B. RSPA Has Not Developed a ``New Interpretation'' of Its Long-Standing
Attendance Requirement in Sec. 177.834(i)
In its petition, AmeriGas states that, in the August 18, 1997 final
rule, RSPA announced a new interpretation of the long-standing
attendance requirements set forth at Sec. 177.834(i). AmeriGas contends
that this interpretation should be withdrawn because it: (1) is
inconsistent with the regulatory language; (2) was announced without
notice or opportunity to comment, in violation of the Administrative
Procedure Act (APA) (see 5 U.S.C. 553); and (3) is inconsistent with
normal industry practice that has been ``accepted for decades without
question.''
AmeriGas's arguments are invalid because RSPA's position with
regard to the meaning of Sec. 177.834(i) is consistent with the
regulatory history and plain language of that requirement. Furthermore,
the public was given notice of the rulemaking that gave rise to the
attendance requirements and an opportunity to comment. Indeed, comments
to that rulemaking reflect that industry understood that restrictions
on the person attending the unloading of hazardous materials from
CTMV's were being proposed. Additional notice and an opportunity to
comment are, therefore, not required under the APA. Finally, there is
no validity to the assertion that, for decades, the Department has
accepted widespread industry non-compliance with the attendance
requirements. For these reasons, AmeriGas's petition for
reconsideration of RSPA's position regarding the Sec. 177.834(i)
attendance requirements is denied.
1. RSPA's Position Is Consistent With the Regulatory History and Plain
Language of the Attendance Requirements in Sec. 177.834(i)
AmeriGas argues in favor of an industry interpretation that
compliance with Sec. 177.834(i) can be achieved by having a single
operator remain in proximity to, and maintain an unobstructed view of,
any part of the delivery hose.
The position that RSPA has taken with regard to the meaning of the
attendance requirements in 49 CFR 177.834(i) is not only consistent
with the plain language of the regulation but the regulatory history of
the regulation as well. Section 177.834(i) states:
* * * * *
(2) Unloading. A motor carrier who transports hazardous materials
by a cargo tank must ensure that the cargo tank is attended by a
qualified person at all times during unloading. . . .
(3) A person ``attends'' the loading or unloading of a cargo tank
if, throughout the process, he is awake, has an unobstructed view of
the cargo tank, and is within 7.62 meters (25 feet) of the cargo tank.
* * * * *
(5) A delivery hose, when attached to the cargo tank, is considered
a part of the vehicle (Emphasis added.)
RSPA's position consistently has been that the plain language of
Sec. 177.834(i) requires an attendant to maintain an unobstructed view
of the cargo tank and be within 25 feet of the cargo tank during the
unloading process.1 Contrary to AmeriGas's assertion, the
term ``cargo tank'' means the cargo tank itself and does not mean the
hose or CTMV. The language of Sec. 177.834(i)(5) plainly states that
the hose is part of the vehicle not the cargo tank.
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\1\ RSPA's position is supported by National Fire Protection
Association publication ``Standard for the Storage and Handling of
Liquefied Compressed Gases'' (NFPA 58), reported as adopted by 49 of
50 states. Section 4-2.3.3 requires, during unloading into storage
containers, that ``the shutoff valves on both the truck and the
container are readily accessible.''
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AmeriGas contends that there is support for industry's
interpretation of the Sec. 177.834(i)(3) requirements in the regulatory
history of these requirements. Specifically, AmeriGas relies on
language that appeared in a republication of 49 CFR Parts 71-90 by the
Interstate Commerce Commission (ICC) on December 29, 1964 (29 FR
18652). (The ICC regulated hazardous materials transportation by
highway and rail prior to 1967, the year the Department of
Transportation (DOT) was established). The regulatory text AmeriGas
relies on reads, ``Under no circumstances shall a tank motor vehicle be
left unattended during the loading or unloading process. For the
purpose of this part, the delivery hose, when attached to the motor
vehicle, shall be deemed a part thereof.'' (December 29, 1964; 29 FR
18801). RSPA believes this regulatory language makes it clear that a
CTMV operator must attend the CTMV and any delivery hose attached to
the motor vehicle
[[Page 65191]]
during loading and unloading. The intent of this provision was to
ensure that the operator took responsibility for the entire delivery
system which, for purposes of Part 77, included not only the motor
vehicle itself but also the delivery hose when attached to the motor
vehicle. However, the 1964 language in Sec. 77.834(i) was not specific
as to what actions constituted ``attendance.''
Realizing that the word ``attendance'' was vague and that there was
industry confusion regarding what was required under the attendance
regulation, the Hazardous Materials Regulations Board (the Board), the
predecessor to RSPA's Office of the Associate Administrator for
Hazardous Materials Safety, initiated a rulemaking in Docket HM-110 to
clarify the attendance requirement. Language in the notice of proposed
rulemaking (NPRM) and the final rule in Docket HM-110 serves as the
basis for RSPA's interpretation of the current attendance requirement.
Specifically, in the preamble to the HM-110 NPRM, the Board stated:
The Board has found that several dangerous incidents have
occurred during the loading or unloading of tank motor vehicles
which could have been avoided, if there had been someone near the
cargo tank to take corrective action or precautionary action. The
Board feels that there may be some confusion as to the intent of the
term ``attendance'' as it is used in Sec. 177.834(i). (Emphasis
added).
38 FR 22901, August 27, 1973.
Based on this concern, the Board proposed to revise the regulation
to include a requirement that an operator remain within 25 feet of the
cargo tank motor vehicle. The Board also proposed to delete the
limiting language ``for the purpose of this part'' from the hose
provision of the attendance requirements, thereby making the delivery
hose part of the tank motor vehicle not only for loading and unloading
purposes, but for other regulatory purposes as well (e.g., incident
reporting). Specifically, the Board proposed to revise the attendance
requirements in Sec. 177.834(i) to state:
(1) A tank motor vehicle is attended when the person in charge
of the vehicle is awake and not in a sleeper berth, and is within 25
feet of the tank motor vehicle and has it within his unobstructed
field of view. . . . (3) The delivery hose, when attached to the
tank motor vehicle, is a part of the vehicle.
Id. at 22902.
In its January 11, 1973 comments to the Board's proposed revision
to Sec. 177.834(i), the National LP-Gas Association (NLPGA) (now NPGA)
proposed to revise the language to reinsert the limiting language ``for
the purpose of this part'' with regard to the hose provision of the
attendance requirements. Specifically, the NLPGA proposed to revise
Sec. 177.834(i)(3) to read ``For the purposes of this part the delivery
hose, when attached to the tank motor vehicle, is a part of the
vehicle.'' In explaining the proposed reinsertion of limiting words
``for the purposes of this part,'' the NLPGA stated: ``We have no
objection to a requirement that the motor vehicle operator or motor
vehicle attendant be expected to attend the unloading hose as well as
the vehicle since in most cases he will provide the hose and will have
connected it to the unloading equipment. We don't feel the delivery
hose should be considered as a part of the motor vehicle.'' (Emphasis
added). Industry's comments on the HM-110 NPRM indicate that industry
fully understood that the Board proposed to require an attendant to
remain within 25 feet of the cargo tank motor vehicle and hose, and
maintain an unobstructed view of the cargo tank motor vehicle and hose.
It is apparent from the NLPGA's comments to the proposed changes to
Sec. 177.834(i) that it understood the Board's concerns and its intent.
In the HM-110 final rule, the language that currently appears at
Sec. 177.834(i)(3), other than the addition of metric conversion of 25
feet, was adopted by the Board. Section 177.834(i)(3) currently reads,
``A person `attends' the loading or unloading of a cargo tank if,
throughout the process, he is awake, has an unobstructed view of the
cargo tank, and is within 7.62 meters (25 feet) of the cargo tank.''
Section 177.834(i)(5) currently reads, ``A delivery hose, when attached
to the cargo tank, is considered a part of the vehicle.'' In the final
rule, the Board adopted the language in Sec. 177.834(i)(3) that refers
to the ``cargo tank'' and not the ``tank motor vehicle,'' as proposed
in the NPRM. The language in Sec. 177.834(i)(5), however, continues to
refer to the hose as part of the vehicle. The final rule requires a
qualified person attending the loading or unloading of a cargo tank to
remain within 25 feet of the cargo tank, maintain an unobstructed view
of the cargo tank, and to attend the hose to the same extent that the
qualified person attends to the cargo tank motor vehicle under the HMR.
AmeriGas also cites Shell Oil Company's October 26, 1973 comments
to the Board's proposed revision of the attendance requirements in
Docket HM-110 as support for its interpretation of the attendance
requirements and evidence that the agency was aware of the industry's
interpretation of the attendance requirements. Specifically, AmeriGas
points to Shell Oil's comment that ``Section 177.834(i)(1) requiring an
attendant within 25 feet of the tank motor vehicle or its hose is over
restrictive in cases where tight fill connections are used which are
now in the majority.'' (Emphasis added.) AmeriGas places great weight
on the fact that Shell used the word ``or'' rather than ``and'' to
describe the proposed requirements. AmeriGas states that the word
``or'' put DOT on notice that the proposed language was being
interpreted to allow an operator to comply with the attendance
requirements by remaining within 25 feet of any part of the hose and
maintaining an unobstructed view of any part of the hose.
AmeriGas, however, did not recognize or discuss the next sentence
in Shell's comments which reads, ``This restriction prohibits
performance of other duties and would unnecessarily increase delivery
costs.'' (Emphasis added). AmeriGas's interpretation of the attendance
requirements would allow an operator to be within 25 feet of and have
an unobstructed view of, any part of the CTMV including, any part of
its hose. Under AmeriGas's interpretation, there is virtually no
restriction on an operator's ability to perform other duties--an
operator can be virtually anywhere between the cargo tank motor vehicle
and the receiving tank--and a single operator can always satisfy the
industry interpretation of the attendance requirements. The preceding
regulatory history indicates that the Board intended to restrict the
movement of the person unloading a cargo tank by requiring the operator
to remain within 25 feet of the cargo tank and maintain an unobstructed
view of the cargo tank, resulting in a limitation on the attendant's
ability to perform other duties or activities. The type of
precautionary action the Board contemplated when it initiated HM-110
cannot be taken if a cargo tank attendant is more than 25 feet away
from the cargo tank, out of sight behind a building or other
obstruction, or both. This sentence indicates that Shell understood
that the Board was proposing new restrictions on unloading operations.
RSPA squarely rejected industry's interpretation of the attendance
requirements during public meetings and workshops, in written
correspondence,2 and in the preamble to
[[Page 65192]]
the August 18, 1997 final rule.3 Specifically, the preamble
to the final rule states:
\2\ See October 3, 1997 letter to Barton Day, Esq., counsel for
Ferrellgas, L.P., Suburban Propane, L.P., AmeriGas Propane L.P.,
Agway Petroleum Corporation, Cornerstone Propane Partners, L.P., and
National Propane, L.P. (item no. 188 in RSPA docket 97-2133).
\3\ Because of industry's concerns about the attendance
requirements, RSPA indicated in a June 9, 1997 notice [62 FR 31363]
that it would initiate a new rulemaking to review and possibly
revise the attendance and other regulatory requirements (see Docket
No. RSPA-97-2718).
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RSPA rejects the industry's interpretation of the long-standing
operator attendance rules in Sec. 177.834(i)(3) that a single
operator satisfies requirements for an unobstructed view of the
cargo tank, and is within 25 feet of the cargo tank, merely by being
in proximity to, and having an unobstructed view of, any part of the
delivery hose, which may be 100 feet or more away from the cargo
tank motor vehicle, during the unloading (transfer) operation. The
rule clearly requires an operator be in a position from which the
earliest signs of problems that may occur during the unloading
operation are readily detectable, thereby permitting an operator to
promptly take corrective measures, including moving the cargo tank,
actuating the remote means of automatic closure of the internal
self-closing stop valve, or other action, as appropriate. RSPA
contends the rule requires that an operator always be within 25 feet
of the cargo tank. Simply being within 25 feet of any one of the
cargo tank motor vehicle's appurtenances or auxiliary equipment does
not constitute compliance.
62 FR at 44044.
Because RSPA's position is consistent with the regulatory history
and plain language of 49 CFR 177.834(i), petitioner's request that RSPA
withdraw its interpretation is denied.
2. Additional Notice and Comment Are Not Required Under the APA.
AmeriGas alleges that RSPA's ``new interpretation'' was announced
without notice or opportunity to comment, in violation of the APA.
Section 553 of the APA requires that Federal agencies give the
public an opportunity to participate in the rulemaking process by
giving notice, in the Federal Register, of either the terms or
substance of a proposed rule or a description of the subjects and
issues involved, and an opportunity to submit written data, views, or
arguments. As discussed above, the Board realized that the word
``attendance'' was vague, as used in the original ICC attendance
regulations, and that there was industry confusion regarding what was
required. Consequently the Board issued an NPRM, in docket HM-110,
proposing to clarify the attendance requirements. In issuing the NPRM,
the Board specifically noted that there had been several dangerous
incidents during the loading or unloading of cargo tank motor vehicles
that the Board felt could have been avoided had someone been near the
cargo tank to take corrective or precautionary action.
The Board's clearly specified reasons for undertaking the HM-110
rulemaking, in conjunction with the proposed regulatory language,
NLPGA's and Shell Oil's comments on that language, and the language of
the final regulatory requirements all demonstrate that: (1) the public
was given notice of the Board's intent to require an operator to be
near the cargo tank during unloading, and an opportunity to comment;
and (2) RSPA's position on the Sec. 177.834(i) attendance requirement
is long-standing and reflects industry understanding of the
requirements at the time they were proposed and adopted. Therefore,
RSPA's statements concerning the attendance requirements in
Sec. 177.834(i) do not in any way change the regulations or constitute
rulemaking. Consequently, further notice and comment under the APA is
not necessary.
3. DOT Was Not Aware of Widespread Non-Compliance.
AmeriGas claims that in the decades before--and 22 years since--the
attendance requirements in Sec. 177.834(i) were adopted, small CTMVs
typically carried delivery hoses of 100 feet or more in length and were
attended during at least a substantial portion of the unloading process
from the position of the customer tank. AmeriGas states that these
vehicles have operated openly and have been inspected by DOT officials
on hundreds of occasions over the years without any suggestion that the
routine operation of these vehicles under the industry's interpretation
of Sec. 177.834(i)(3) was improper. AmeriGas thus asserts that DOT has
accepted for decades without question industry's long-standing practice
of not remaining within 25 feet of the cargo tank and not maintaining
an unobstructed view of it.
Although, FHWA inspectors occasionally inspect small CTMVs at
roadside inspection facilities, they do not inspect the hose to
determine its length as part of their routine inspection procedures.
Neither the HMR nor the Federal Motor Carrier Safety Regulations, 49
U.S.C. Parts 350-399, restrict hose length. Additionally, neither FHWA
nor RSPA inspectors routinely inspect small CTMV unloading operations.
Thus, the Department was not aware that small CTMV deliveries of
propane were being made in violation of the HMR. The fact that FHWA
inspectors may have observed small CTMVs with hose lengths in excess of
100 feet does not support the argument that DOT knew that deliveries
were being made in violation of the HMR.
The National Fire Protection Association (NFPA) publication
``Standard for the Storage and Handling of Liquefied Compressed Gases''
(NFPA 58) reported by NFPA as adopted by 49 of 50 states (with Texas
preparing to adopt NFPA 58 next year), has unloading requirements that
are consistent with and provide support to the HMR requirement that a
qualified person maintain an unobstructed view of the cargo tank, and
be in a position to promptly effect emergency procedures should there
be a line separation or other problem requiring immediate attention.
Specifically, at Section 4-2.1.1, NFPA 58 states:
Transfer operations shall be conducted by qualified personnel
meeting the provisions of Section 1-5. At least one qualified person
shall remain in attendance at the transfer operation from the time
connections are made until the transfer is completed, shutoff valves
are closed, and lines are disconnected. (Emphasis added).
In addition, Section 4-2.3.3 of NFPA-58 requires:
Cargo vehicles (see Section 6-3) unloading into storage
containers shall be at least 10 feet (3.0 m) from the container and
so positioned that the shutoff valves on both the truck and the
container are readily accessible. (Emphasis added).
The fourth edition of the LP Gases Handbook, published by the NFPA
interprets Section 4-2.3.3 as follows: ``* * * The unloading cargo
vehicle should be a distance from the container receiving the product
so that if something happens at either point, the other will not be
involved to the extent that it would be if it were in close proximity.
Also, it is important to have the cargo vehicle so located that it is
easy to get to the valves on both the truck and the container so that
they can quickly be shut off if there is an emergency need to do so. *
* * '' 4 NFPA recognizes the importance of attending both
the receiving tank and the cargo tank. RSPA believes that both warrant
attention during unloading and that it is important to position these
tanks so that this safety objective is achievable.
---------------------------------------------------------------------------
\4\ Theodore C. Lemoff, ed., LP-GASES Handbook, 4th ed. (Quincy:
National Fire Protection Association, 1995), p. 307.
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The importance of having a qualified person in a position to
promptly effect closure of the internal valve and to shut down all
motive and auxiliary power has been re-affirmed by two recent unloading
incidents that resulted in the death of one operator and injury to
[[Page 65193]]
another.5 These incidents did not involve the separation of
hose or piping, which emergency discharge control system requirements
are meant to address, but were the result of equipment failures, which
the attendance requirements in Sec. 177.834(i) are meant to address.
The CTMV was the suspected source of ignition in both of these
incidents. Based on initial reports, had a qualified person been in
attendance within 25 feet of the CTMV, he would have had a better
chance of closing the internal self-closing stop valve prior to
ignition.
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\5\ Initial reports from the Fire Marshall of Burke County,
North Carolina indicate that on September 23, 1997, in Morganton,
North Carolina, a Piedmont Natural Gas operator was at the receiving
tank (approximately 80 feet from the cargo tank motor vehicle) when
the hose nozzle became clogged with a foreign object believed to be
part of the meter, thus preventing the operator from closing the
nozzle when the customer tank became full. Consequently, the
receiving tank overfilled and propane continued to flow from the
hose at full pressure when the operator disconnected the hose from
the receiving tank. The operator began to approach the cargo tank
motor vehicle in order to manually shut the internal self-closing
stop valve, but there was an explosion and fire before he could take
emergency action. The operator received second-and third-degree
burns over most of his body and died shortly thereafter.
On June 6, 1997, in Fayetteville, North Carolina, an AmeriGas
operator stopped product transfer and was in the process of
disconnecting the transfer hose from the receiving tank when he
observed white fog escaping from under the truck. He immediately
dropped the transfer hose and ran toward the truck (approximately 60
feet) to activate the engine kill switch and the emergency internal
self-closing stop valve. When he was within 10 to 12 feet of the
truck, the escaped gas vapors ignited, causing second degree burns
to the operator's face and right thigh.
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Therefore, based on the above information, RSPA denies that part of
AmeriGas's petition for reconsideration concerning the attendance
requirements. The attendance requirement is intended to address a
number of potentially serious threats to safety that may arise during
the course of unloading, including failure of a parking brake to
prevent movement of a motor vehicle; equipment failures (e.g., pump
leaks and leaks at a hose reel); and entry into the vicinity of the
motor vehicle by persons who are carrying smoking materials. In all
such instances, the qualified person attending the unloading operation
must be aware of potential and actual threats to safety and be prepared
to implement emergency procedures intended to minimize or eliminate
those threats.
C. Need for Additional Operational Controls
AmeriGas states that RSPA's central basis for the interim
requirements imposed under the August rule is that there is a need to
address safety concerns that exist due to the inability of the
emergency discharge control system currently in service on ``bobtail
vehicles'' in compressed gas service to function in accordance with the
HMR as specified under Sec. 178.337-11(a)(1)(i). The petitioner then
states that the record does not demonstrate the need for new
requirements because the record does not include even a single
documented incident involving the failure of the emergency discharge
control system on a bobtail vehicle. Further, the petitioner states
that the risk of such an event is extraordinarily remote and that there
is no safety threat sufficient to warrant the imposition of burdensome
interim operator attendance requirements for bobtails. Finally, the
petitioner claims that RSPA's decision to impose burdensome interim
operator attendance requirements for small CTMVs reflects a disregard
of the evidence before it and arbitrarily fails to consider less
burdensome regulatory alternatives.
In response, RSPA's underlying purpose of alternative operational
controls adopted in the current requirements is to assure that persons
who are dependent upon propane, anhydrous ammonia, and other liquefied
compressed gases continue to receive those essential materials in a
manner that does not impose unacceptable threats to public health and
safety. The challenge was to develop rules for approximately 25,000
pump-equipped cargo tank motor vehicles (estimated to comprise the
universe of specification MC-330, MC-331, and related non-specification
cargo tanks) that industry determined may not conform to the long-
standing requirements in Sec. 178.337-11(a)(1)(i) for an emergency
discharge control system (see emergency exemption applications filed by
Mississippi Tank, National Tank Truck Carriers, NPGA and TFI; December
1996).
In developing the temporary alternative requirements, RSPA first
determined there must be an effective means of providing for prompt
closure of the internal self-closing stop valve under emergency
conditions until industry could develop a system that provides a level
of safety equal to that provided by Sec. 178.337-11. The risks posed by
an uncontrolled release of propane from a cargo tank motor vehicle are
so great that, while RSPA sought to minimize the cost of compliance
with the alternative requirements, safety was RSPA's primary concern.
Additional training and hose testing requirements adopted in Sec. 171.5
may reduce the risks of a release, but such measures do not provide a
means of stopping the flow of propane once a release occurs.
The petitioner relies on a small number of incidents cited in the
public docket to support its contention that the safety concern with
regard to small CTMVs is minuscule. However, RSPA notes that: (1)
industry is not required to report to DOT the occurrence of propane
incidents or accidents that occur in intrastate commerce--which
encompasses the vast majority of small CTMV deliveries; and (2) the
small number of incidents in the record are not representative of the
entire universe of incidents of which RSPA is aware. Federal hazardous
materials transportation law at 49 U.S.C. 5103 directs the Secretary of
Transportation to prescribe regulations for the safe transportation of
a hazardous material when the Secretary determines that transporting a
material in commerce in a particular amount and form may pose an
unreasonable risk to health and safety or property. In developing
safety regulations, RSPA must consider potential hazards posed by a
material and may not base its regulatory decisions solely on the number
of reported incidents.
For the reasons discussed above, RSPA denies this element of the
petitioner's request for reconsideration of the final rule.
D. March 1, 1999 Expiration Date of the Temporary Final Rule
Requirements
AmeriGas states that the legal effect of the expiration clause in
the final rule is to require operators of small CTMVs to have in place
passive emergency discharge control systems that will meet RSPA's
requirements under Sec. 178.337-11(a)(1)(i) by March 1, 1999. AmeriGas
requests that the expiration date specified in Sec. 171.5(c) be
stricken pending completion of the rulemaking proceeding under Docket
RSPA-97-2718 (HM-225A) that addresses long-term compliance issues.
On August 18, 1997, RSPA published an advance notice of proposed
rulemaking (ANPRM) in Docket HM-225A (62 FR 44059) requesting comments
regarding jurisdiction, emergency discharge controls, qualification and
use of delivery hoses, and attendance requirements. The questions posed
in the ANPRM are indicative of the range of options RSPA is
considering, this includes various retrofit schedules for installation
of new equipment. RSPA is mindful of industry's concerns and will take
them into consideration in formulating a long-term compliance plan
under HM-225A. Additionally, affected parties may choose to install
systems that meet the
[[Page 65194]]
current requirements in Sec. 178.337-11(a)(1)(i). For these reasons,
RSPA denies AmeriGas's request for reconsideration of that part of the
final rule concerning the expiration date of Sec. 171.5.
IV. Rulemaking Analyses and Notices
A. 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 was not reviewed by the
Office of Management and Budget. This rule is not considered
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11034; February 26, 1979). This
rule revises a safety standard for verifying the integrity of transfer
hoses on cargo tank motor vehicles in liquefied compressed gas service
and makes other minor, non-substantive changes.
The final rule published on August 18, 1997, was a significant
regulatory action under section 3(f) of Executive Order 12866 and was
reviewed by the Office of Management and Budget. The rule also was
considered significant under the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
RSPA did not prepare a regulatory evaluation for this final rule
addressing the issue of revising the transfer hose pressure
requirement. However, a final regulatory evaluation was prepared in
support of the final rule published on August 18, 1997. The final
regulatory evaluation is available for review in the public docket.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous materials transportation law, 49 U.S.C. 5101-5127,
contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This rule addresses covered subject item (5) above and preempts
State, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. Federal hazardous materials
transportation law provides at Sec. 5125(b)(2) 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 has determined that the
effective date of Federal preemption for these requirements will be
March 10, 1996. Thus, RSPA lacks discretion in this area, and
preparation of a federalism assessment is not warranted.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (Act), as amended, 5 U.S.C. 601-612,
directs agencies to consider the potential impact of regulations on
small business and other small entities. The Act, however, applies only
to rules for which an agency is required to publish a notice of
proposed rulemaking pursuant to Sec. 553 of the Administrative
Procedure Act (APA), 5 U.S.C. 553. See 5 U.S.C. 603(a) and 604(a).
Because of the emergency nature of the final rule published on August
18, 1997, RSPA was authorized under sections 553(b)(B) and 553(d)(3) of
the APA to forego notice and comment and to issue the final rule with
an immediate effective date. Nevertheless, RSPA was concerned about the
effect the final rule would have on small businesses and, in preparing
preliminary and final regulatory evaluations under Executive Order
12866, analyzed the impact of the interim final rule and final rule on
all affected parties, including small businesses. Consequently, RSPA is
not required under the Act to do a regulatory flexibility analysis for
this final rule.
D. Unfunded Mandates Reform Act
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
E. Paperwork Reduction Act
This rule does not impose any new information collection burdens.
The information collection and recordkeeping requirements contained in
the final rule were submitted for renewal to the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1995. The requirement has been approved under OMB Control Number 2137-
0595.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) 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 RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 171 is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for Part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 171.5, paragraphs (a)(1)(i), (a)(1)(iii)(B) and
(a)(1)(iii)(C)(3) are revised to read as follows:
Sec. 171.5 Temporary regulation; liquefied compressed gases in cargo
tank motor vehicles.
(a) * * *
(1) * * *
(i) Before initiating each transfer from a cargo tank motor vehicle
to a receiving system, the person performing the function shall
determine that each component of the discharge system (including hose)
is of sound quality and free of leaks and that connections are secure.
This determination shall be made after the pressure in the discharge
system has reached no less than equilibrium with the pressure in the
cargo tank.
* * * * *
(iii) * * *
(B) A qualified person positioned within arm's reach of a
mechanical means of closure of the internal self-
[[Page 65195]]
closing stop valve at all times the internal self-closing stop valve is
open; except, that person may be away from the mechanical means only
for the short duration necessary to engage or disengage the motor
vehicle power take-off or other mechanical, electrical, or hydraulic
means used to energize the pump and other components of the cargo tank
motor vehicle's discharge system; or
(C) * * *
(3) Is awake throughout the unloading process, and has an
unobstructed view of the cargo tank at all times that the internal
self-closing stop valve is open.
* * * * *
Sec. 171.5 [Amended]
3. In addition, in Sec. 171.5 the following changes are made:
a. In paragraph (a) introductory text, in the first sentence,
``ruptured or'' is removed.
b. In paragraph (a)(1)(ii), in the third sentence, ``and
equipment'' is removed.
c. In paragraph (c), the date ``March 1, 1999'' is revised to read
``July 1, 1999''.
Issued in Washington, DC on December 5, 1997, under authority
delegated in 49 CFR part 1.
Kelley Coyner,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 97-32385 Filed 12-8-97; 9:40 am]
BILLING CODE 4910-60-P
