[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.<SUP>1</SUP> 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,<SUP>2</SUP> and in the preamble to

[[Page 65192]]

the August 18, 1997 final rule.<SUP>3</SUP> 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. * 
* * '' <SUP>4</SUP> 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.
---------------------------------------------------------------------------

    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.<SUP>5</SUP> 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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