65188 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

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.

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 § 171.5(a) for

consistency with § 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

§ 171.5(a)(1)(iii) and the AmeriGas

request for reconsideration of: The

provision in § 171.5(c) setting forth an

expiration date for the final rule

requirements; and RSPA’s interpretation

of the attendance requirements in

§ 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 § 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 § 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 § 171.5(a)(1)(iii) that the

qualified person unloading a CTMV

promptly activate the internal selfclosing 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 longstanding attendance requirements in

§ 177.834(i) pending further rulemaking

after notice and comment; (3)

withdrawal of the expiration date in

§ 171.5(c); (4) deletion of the word

‘‘rupture’’ as it appears in § 171.5(a);

and (5) withdrawal of the requirement

in § 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 § 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 § 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
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 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,

§ 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 § 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 § 171.5(a)

with respect to comparable

requirements in § 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, § 171.5(a) is amended

by removing the wording ‘‘ruptured or’’

to make this provision consistent with

requirements in § 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

§ 171.5. The petitioners request a fourmonth extension of the alternative

requirements in § 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 § 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 § 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 remotecontrolled 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 shutdown 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 § 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

§ 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 remotecontrolled 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 § 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, remotecontrolled 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 remotecontrol 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
65190 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

1RSPA’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.’’

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 § 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

§ 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 § 177.834(i)(3).

Specifically, § 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

§ 171.5(a)(1)(iii)(C) is revised to clarify

that where a remote-controlled system is

used, the attendance requirements in

§ 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, § 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 § 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 § 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 § 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 § 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 § 177.834(i)

AmeriGas argues in favor of an

industry interpretation that compliance

with § 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 § 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 § 177.834(i)(5) plainly states

that the hose is part of the vehicle not

the cargo tank.

AmeriGas contends that there is

support for industry’s interpretation of

the § 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
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 65191

2See 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.,

Continued

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 § 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 § 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 § 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

§ 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 § 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 § 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

§ 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 § 177.834(i)(3)

that refers to the ‘‘cargo tank’’ and not

the ‘‘tank motor vehicle,’’ as proposed

in the NPRM. The language in

§ 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
65192 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

and National Propane, L.P. (item no. 188 in RSPA

docket 97–2133).

3Because 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).

4Theodore C. Lemoff, ed., LP–GASES Handbook,

4th ed. (Quincy: National Fire Protection

Association, 1995), p. 307.

the August 18, 1997 final rule.3

Specifically, the preamble to the final

rule states:

RSPA rejects the industry’s interpretation

of the long-standing operator attendance

rules in § 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 § 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 § 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 § 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

§ 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.

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
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 65193

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.

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 § 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.

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 § 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 § 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 § 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 § 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 § 178.337–

11(a)(1)(i) by March 1, 1999. AmeriGas

requests that the expiration date

specified in § 171.5(c) be stricken

pending completion of the rulemaking

proceeding under Docket RSPA–97–

2718 (HM–225A) that addresses longterm 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 longterm compliance plan under HM–225A.

Additionally, affected parties may

choose to install systems that meet the
65194 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

current requirements in § 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

§ 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

§ 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

§ 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 § 171.5, paragraphs (a)(1)(i),

(a)(1)(iii)(B) and (a)(1)(iii)(C)(3) are

revised to read as follows:

§ 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-
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 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 takeoff 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.

* * * * *

§ 171.5 [Amended]

3. In addition, in § 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