Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; 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 Sec. 171.5(a) for consistency with Sec. 178.337-11(a)(1)(i) by

removing a hose rupture (i.e., incomplete separation) as a condition

that causes the internal self-closing stop valve to function. This

action grants certain petitions for reconsideration of the final rule

pertaining to effective and practical standards to assure the integrity

of transfer hoses used in unloading operations. Also, in this final

rule, RSPA is granting the request by Farmland and TFI to extend the

expiration of the final rule requirements for four months, to July 1,

1999. RSPA is denying the request by AmeriGas for an immediate stay of

the provisions of Sec. 171.5(a)(1)(iii) and the AmeriGas request for

reconsideration of: The provision in Sec. 171.5(c) setting forth an

expiration date for the final rule requirements; and RSPA's

interpretation of the attendance requirements in Sec. 177.834(i) that a

qualified person must always maintain an unobstructed view of the cargo

tank. Additionally, this action makes editorial revisions and clarifies

certain provisions adopted in the final rule.

DATES: This final rule is effective December 10, 1997.

FOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of

Hazardous Materials Technology, RSPA, Department of Transportation, 400

Seventh Street, S.W., Washington, DC 20590-0001, telephone (202) 366-

4545, or Nancy Machado, Office of the Chief Counsel, RSPA, Department

of Transportation, 400 Seventh Street, S.W., Washington, DC 20590-0001,

telephone (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

On August 18, 1997, RSPA published a final rule under Docket No.

RSPA-97-2133 (HM-225) [62 FR 44038]. The final rule revised and

extended requirements published in an interim final rule (IFR) on

February 19, 1997, concerning the operation of cargo tank motor

vehicles (CTMVs) in certain liquefied compressed gas service. The final

rule requires a specific marking on affected CTMVs and requires motor

carriers to comply with additional operational controls intended to

compensate for the failure of passive emergency discharge control

systems to function as required by the Hazardous Materials Regulations

(HMR; 49 CFR Parts 171-180). The operational controls specified in the

final rule provide an alternative to compliance with Sec. 178.337-

11(a)(1)(i) and are intended to ensure an acceptable level of safety

while the industry and government continue to work to develop an

emergency discharge control system that effectively stops the discharge

of hazardous materials from a cargo tank if any attached hose or piping

is separated.

Petitions for reconsideration of the August 18, 1997 final rule

were filed by The National Propane Gas Association (NPGA), Farmland

Industries, Inc. (Farmland), The Fertilizer Institute (TFI) and jointly

by Ferrellgas, L.P., Suburban Propane, L.P., AmeriGas Propane, L.P.

(AmeriGas), Agway Petroleum Corporation, Cornerstone Propane Partners,

L.P., and National Propane, L.P. On September 26, 1997, Ferrellgas,

L.P., Suburban Propane, L.P., Agway Petroleum Corporation, Cornerstone

Propane Partners, L.P., and National Propane, L.P. withdrew their names

from the jointly-filed petition for reconsideration. Petitioner

AmeriGas, however, continues to seek relief through the September 17,

1997 petition for reconsideration. On October 2, 1997, NPGA withdrew

its petition for reconsideration. On November 5, 1997, National Private

Truck Council (NPTC) filed a petition for reconsideration. Although the

petition was filed by NPTC after the close of the petition period, and

RSPA has not accepted the petition, all NPTC's issues have been

considered since NPTC raised issues identical to those raised by other

petitioners.

Petitioners Farmland and TFI seek reconsideration of two provisions

of the August 18, 1997 final rule. Specifically, they request

reconsideration of the requirement in Sec. 171.5(a)(1)(i) that a

transfer hose be subjected to full transfer pressure before commencing

the first transfer each day. They also ask RSPA to reconsider the

expiration date of the August 18, 1997 final rule requirements; they

request a four-month extension of the expiration date to July 1, 1999.

AmeriGas seeks: (1) Reconsideration and an immediate stay of the

requirement in Sec. 171.5(a)(1)(iii) that the qualified person

unloading a CTMV promptly activate the internal self-closing stop valve

and promptly shut down all motive and auxiliary power in the event of

an unintentional release of lading to the environment during transfer;

(2) immediate withdrawal of RSPA's interpretation of its long-standing

attendance requirements in Sec. 177.834(i) pending further rulemaking

after notice and comment; (3) withdrawal of the expiration date in

Sec. 171.5(c); (4) deletion of the word ``rupture'' as it appears in

Sec. 171.5(a); and (5) withdrawal of the requirement in

Sec. 171.5(a)(1)(i) that the transfer hose be subjected to full

transfer pressure before commencing the first transfer each day.

II. Petitions Granted

A. Daily Pressure Testing of Transfer Hoses

In Sec. 171.5(a)(1)(i), RSPA required that a transfer hose be

subject to full transfer pressure before the first unloading of product

each day. This provision applied to all CTMVs operating under the terms

of the temporary regulation specified in Sec. 171.5.

Petitioners assert that, because most large CTMVs (``transports,''

typically used for bulk plant deliveries) do not have a separate back-

to-tank product bypass line, energizing the pump when the receiving

tank's liquid shutoff valve is closed may damage the pump vanes, result

in failure of the shaft seals and other components, and place high

torsional loads on the power take-off (PTO) drive shaft.

In addition, petitioners state that no additional safety measures

are needed for small CTMVs (``bobtails,'' typically used for local

deliveries) because they are generally equipped with a separate back-

to-tank product bypass valve. Petitioners state that, in the process of

preparing lines for product transfer from a small CTMV, the full length

of transfer hose is charged to pump discharge

[[Page 65189]]

pressure, thereby providing an opportunity to prove the integrity of

the transfer system prior to each delivery.

Recognizing the merit of the petitioners' comments regarding the

transfer hose pressure standard adopted in the final rule, RSPA

published an advisory guidance that communicated the agency's agreement

with the petitioners' claim that some cargo tank pumping systems are

not capable of safely pumping against a closed product valve without

being damaged (62 FR 49171; September 19, 1997) . Therefore,

Sec. 171.5(a)(1)(i) is revised to allow an operator to determine the

leakproofness of a discharge system (including hose) by requiring that

the pressure in the discharge system reach at least equilibrium with

the pressure inside the cargo tank prior to transfer. After the

operator verifies leakproofness of the discharge system, delivery may

commence.

RSPA is also amending Sec. 171.5(a)(1)(i) by removing the wording

``and equipment'' from the third sentence to clarify that only the

piping, hose and hose fittings must be tested daily. There is no

requirement to test the entire cargo tank on a daily basis.

B. Hose Separation Versus Hose Rupture

Petitioner AmeriGas notes RSPA's use of the word ``rupture[d]'' in

Sec. 171.5(a) with respect to comparable requirements in Sec. 178.337-

11(a)(1)(i) concerning operation of the internal self-closing stop

valve. The petitioner states that the word ``rupture[d]'' is more

commonly used to denote a ``leak or partial failure'' rather than an

actual separation, thus creating an undesirable potential for

confusion. Therefore, AmeriGas requests that the word ``rupture[d]'' be

stricken from the regulatory language.

RSPA agrees that the word ``ruptured'' could be construed as adding

new meaning to requirements pertaining to the emergency operation of

the internal self-closing stop valve that was not intended in the

development of the final rule. Therefore, Sec. 171.5(a) is amended by

removing the wording ``ruptured or'' to make this provision consistent

with requirements in Sec. 178.337-11(a)(1)(i).

C. March 1, 1999 Expiration Date of the Temporary Final Rule

Petitioners TFI and Farmland request that RSPA reconsider the March

1, 1999 expiration date of the requirements in Sec. 171.5. The

petitioners request a four-month extension of the alternative

requirements in Sec. 171.5--until July 1, 1999--to avoid expiration of

the requirements at the beginning of the fertilizer industry's peak

delivery season.

RSPA is granting a request by TFI and Farmland to extend the

expiration date until July 1, 1999. This decision is based on RSPA's

understanding that industry will continue to make good faith efforts in

developing an emergency discharge control system that offers an equal

or higher level of safety as that in longstanding provisions in

Sec. 178.337-11(a)(1)(i).

III. Petitions Denied

A. Prompt Activation of the Internal Self-Closing Stop Valve

In its petition, AmeriGas contends that it is impossible to achieve

immediate full compliance with the requirement in Sec. 171.5(a)(1)(iii)

that a qualified person unloading a small CTMV promptly activate the

internal self-closing stop valve and promptly shut down all motive and

auxiliary power equipment if there is an unintentional release of

lading to the environment during transfer. AmeriGas claims this rule

constitutes a new operator attendance requirement that can only be

satisfied by using remote-controlled equipment that is not currently in

service on more than an experimental basis and that such equipment

cannot be put into service in less than a matter of months.

In the February 1997 emergency interim final rule (IFR), RSPA first

adopted additional requirements for the person who attends the

unloading of a CTMV to be within arm's reach of a means for closure

(emergency shut-down device) of the internal self-closing stop valve or

other device that will immediately stop the discharge of product from

the cargo tank [62 FR 7643, February 19, 1997]. Use of an ``electro-

mechanical'' device as a means of closure was discussed in that rule.

Based on comments to the IFR, RSPA revised Sec. 171.5(a)(1)(iii)(C), in

the August final rule, to set forth three ways to achieve prompt

stoppage of lading discharge from the cargo tank by: (1) complying with

the requirements in Sec. 178.337-11(a)(1)(i); (2) using a qualified

person positioned within arm's reach of the mechanical means of closure

of the internal self-closing stop valve throughout the unloading

operation, except during the short period necessary to engage or

disengage the motor vehicle PTO or other mechanical, electrical, or

hydraulic means used to energize the pump and other components of a

cargo tank's discharge system; or (3) using a remote-controlled system

that is capable of stopping the transfer of lading by use of a

transmitter carried by a qualified person unloading the cargo tank.

RSPA notes that the NPGA special task force, organized in part to

develop plans to provide for continued safe operation of existing

propane cargo tanks, concentrated much of its efforts on development of

remote-controlled devices that may be activated by the person attending

an unloading operation [comments of Mr. McHenry, NPGA, June 23, 1997

public meeting]. A representative of the NPGA special task force

reported progress on the development of remote-controlled devices at a

June 23, 1997 public meeting [comments of Mr. McHenry, NPGA].

Petitioner AmeriGas also provided a report on its progress in

developing an effective, low-cost remote-controlled system using radio

frequency technology [comments of Mr. McEnroe, AmeriGas, June 23, 1997

public meeting transcript, pages 5, 45, 56, and 57]. AmeriGas provided

RSPA with an update on its progress in a November 13, 1997 meeting. The

NPGA's July 24, 1997 petition for rulemaking (P-1346) calls for RSPA to

adopt a new provision in Sec. 178.337-11(a)(1)(iii) for a variety of

systems that are capable of closing the internal liquid discharge valve

by remote means.

The public record contains favorable accounts by several propane

dealers who have installed remote-controlled systems on their fleets of

CTMVs [comments of Mr. Schuler, REMTRON, June 23, 1997 public meeting

transcript, pages 59 and 60; comments of Mr. Stillwaggon, H.R. Weaver

Co.; and comments of Mr. McEnroe, AmeriGas, September 30, 1997 public

meeting transcript, pages 42 and 61, respectively].

Industry representatives have stated that they have had good

results with using radio-frequency, remote-controlled systems [comments

of Mr. McEnroe, AmeriGas, public meeting transcript, June 23, 1997,

page 46; Dr. Coady, Hick's Gas, June 23, 1997 public meeting

transcript, pages 92 and 102]. A representative of Hicks Gas, one of

the larger independent marketers of propane, stated that his company

has been developing and refining remote-control shutdown systems on

some of its trucks for the past three years [comments of Dr. Coady,

Hick's Gas, June 23, 1997 public meeting transcript, page 92].

During two public meetings (June 23, 1997 and September 30, 1997)

industry representatives presented information on radio frequency,

remote-controlled systems, some with basic features and others with

more sophisticated applications, that can be used on most

[[Page 65190]]

CTMVs. Additionally, they represented that the installation

instructions for these systems are simple enough that a fleet mechanic

who has a working knowledge of a vehicle's air and electrical systems

generally has the experience and tools necessary to install and proof-

test a system within a period of two or three hours.

The advantage of a remote-controlled device has been demonstrated

during an incident involving a propane release on November 3, 1997 near

Udina, Illinois. The driver, using a remote-controlled device, promptly

activated closure of the internal self-closing stop valve without

ignition of the propane.

RSPA does not agree that operators of CTMVs have no practical means

of compliance. The public record contains information that some

operators began installing remote-controlled systems shortly after

issuance of the February 19, 1997 interim final rule. In addition, the

Federal Highway Administration's (FHWA) compliance policy emphasizes

increased awareness about the rule and its safety benefits, as opposed

to immediate enforcement. If a company shows good faith efforts to

comply with the provisions of Sec. 171.5, FHWA's policy is to not

pursue civil penalty enforcement actions.

Therefore, based on the above information, this part of the

AmeriGas petition for reconsideration of the final rule is denied.

RSPA believes there is a need to clarify that while the first

sentence of Sec. 171.5(a)(1)(iii)(C) allows use of a remote-controlled

system to promptly activate the internal self-closing stop valve in the

event of an unintentional discharge, the second sentence provides

limited relief from the attendance requirements in Sec. 177.834(i)(3).

Specifically, Sec. 177.834(i)(3) requires a qualified person who is

attending the unloading of a cargo tank to be awake, have an

unobstructed view of the cargo tank, and be within 25 feet of the cargo

tank at all times during unloading. Therefore, the second sentence in

Sec. 171.5(a)(1)(iii)(C) is revised to clarify that where a remote-

controlled system is used, the attendance requirements in

Sec. 177.834(i)(3) are satisfied when the qualified person attending is

awake, is carrying a transmitter that can activate the closure of the

internal self-closing stop valve, remains within the operating range of

the transmitter, and maintains an unobstructed view of the cargo tank

when the internal self-closing stop valve is open.

Also, Sec. 171.5(a)(1)(iii)(B) is revised to clarify that a

qualified person must be positioned within arm's reach of a mechanical

means of closure for the internal self-closing stop valve only when

this valve is open, except for the short duration necessary to engage

or disengage the motor vehicle PTO or other mechanical, electrical or

hydraulic means used to energize the pump and other components of a

cargo tank motor vehicle's discharge system. All of these functions

occur at or immediately adjacent to the cargo tank in proximity to a

means for closure of the internal self-closing stop valve.

B. RSPA Has Not Developed a ``New Interpretation'' of Its Long-Standing

Attendance Requirement in Sec. 177.834(i)

In its petition, AmeriGas states that, in the August 18, 1997 final

rule, RSPA announced a new interpretation of the long-standing

attendance requirements set forth at Sec. 177.834(i). AmeriGas contends

that this interpretation should be withdrawn because it: (1) is

inconsistent with the regulatory language; (2) was announced without

notice or opportunity to comment, in violation of the Administrative

Procedure Act (APA) (see 5 U.S.C. 553); and (3) is inconsistent with

normal industry practice that has been ``accepted for decades without

question.''

AmeriGas's arguments are invalid because RSPA's position with

regard to the meaning of Sec. 177.834(i) is consistent with the

regulatory history and plain language of that requirement. Furthermore,

the public was given notice of the rulemaking that gave rise to the

attendance requirements and an opportunity to comment. Indeed, comments

to that rulemaking reflect that industry understood that restrictions

on the person attending the unloading of hazardous materials from

CTMV's were being proposed. Additional notice and an opportunity to

comment are, therefore, not required under the APA. Finally, there is

no validity to the assertion that, for decades, the Department has

accepted widespread industry non-compliance with the attendance

requirements. For these reasons, AmeriGas's petition for

reconsideration of RSPA's position regarding the Sec. 177.834(i)

attendance requirements is denied.

1. RSPA's Position Is Consistent With the Regulatory History and Plain

Language of the Attendance Requirements in Sec. 177.834(i)

AmeriGas argues in favor of an industry interpretation that

compliance with Sec. 177.834(i) can be achieved by having a single

operator remain in proximity to, and maintain an unobstructed view of,

any part of the delivery hose.

The position that RSPA has taken with regard to the meaning of the

attendance requirements in 49 CFR 177.834(i) is not only consistent

with the plain language of the regulation but the regulatory history of

the regulation as well. Section 177.834(i) states:

* * * * *

(2) Unloading. A motor carrier who transports hazardous materials

by a cargo tank must ensure that the cargo tank is attended by a

qualified person at all times during unloading. . . .

(3) A person ``attends'' the loading or unloading of a cargo tank

if, throughout the process, he is awake, has an unobstructed view of

the cargo tank, and is within 7.62 meters (25 feet) of the cargo tank.

* * * * *

(5) A delivery hose, when attached to the cargo tank, is considered

a part of the vehicle (Emphasis added.)

RSPA's position consistently has been that the plain language of

Sec. 177.834(i) requires an attendant to maintain an unobstructed view

of the cargo tank and be within 25 feet of the cargo tank during the

unloading process.1 Contrary to AmeriGas's assertion, the

term ``cargo tank'' means the cargo tank itself and does not mean the

hose or CTMV. The language of Sec. 177.834(i)(5) plainly states that

the hose is part of the vehicle not the cargo tank.

---------------------------------------------------------------------------

\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.''

---------------------------------------------------------------------------

AmeriGas contends that there is support for industry's

interpretation of the Sec. 177.834(i)(3) requirements in the regulatory

history of these requirements. Specifically, AmeriGas relies on

language that appeared in a republication of 49 CFR Parts 71-90 by the

Interstate Commerce Commission (ICC) on December 29, 1964 (29 FR

18652). (The ICC regulated hazardous materials transportation by

highway and rail prior to 1967, the year the Department of

Transportation (DOT) was established). The regulatory text AmeriGas

relies on reads, ``Under no circumstances shall a tank motor vehicle be

left unattended during the loading or unloading process. For the

purpose of this part, the delivery hose, when attached to the motor

vehicle, shall be deemed a part thereof.'' (December 29, 1964; 29 FR

18801). RSPA believes this regulatory language makes it clear that a

CTMV operator must attend the CTMV and any delivery hose attached to

the motor vehicle

[[Page 65191]]

during loading and unloading. The intent of this provision was to

ensure that the operator took responsibility for the entire delivery

system which, for purposes of Part 77, included not only the motor

vehicle itself but also the delivery hose when attached to the motor

vehicle. However, the 1964 language in Sec. 77.834(i) was not specific

as to what actions constituted ``attendance.''

Realizing that the word ``attendance'' was vague and that there was

industry confusion regarding what was required under the attendance

regulation, the Hazardous Materials Regulations Board (the Board), the

predecessor to RSPA's Office of the Associate Administrator for

Hazardous Materials Safety, initiated a rulemaking in Docket HM-110 to

clarify the attendance requirement. Language in the notice of proposed

rulemaking (NPRM) and the final rule in Docket HM-110 serves as the

basis for RSPA's interpretation of the current attendance requirement.

Specifically, in the preamble to the HM-110 NPRM, the Board stated:

The Board has found that several dangerous incidents have

occurred during the loading or unloading of tank motor vehicles

which could have been avoided, if there had been someone near the

cargo tank to take corrective action or precautionary action. The

Board feels that there may be some confusion as to the intent of the

term ``attendance'' as it is used in Sec. 177.834(i). (Emphasis

added).

38 FR 22901, August 27, 1973.

Based on this concern, the Board proposed to revise the regulation

to include a requirement that an operator remain within 25 feet of the

cargo tank motor vehicle. The Board also proposed to delete the

limiting language ``for the purpose of this part'' from the hose

provision of the attendance requirements, thereby making the delivery

hose part of the tank motor vehicle not only for loading and unloading

purposes, but for other regulatory purposes as well (e.g., incident

reporting). Specifically, the Board proposed to revise the attendance

requirements in Sec. 177.834(i) to state:

(1) A tank motor vehicle is attended when the person in charge

of the vehicle is awake and not in a sleeper berth, and is within 25

feet of the tank motor vehicle and has it within his unobstructed

field of view. . . . (3) The delivery hose, when attached to the

tank motor vehicle, is a part of the vehicle.

Id. at 22902.

In its January 11, 1973 comments to the Board's proposed revision

to Sec. 177.834(i), the National LP-Gas Association (NLPGA) (now NPGA)

proposed to revise the language to reinsert the limiting language ``for

the purpose of this part'' with regard to the hose provision of the

attendance requirements. Specifically, the NLPGA proposed to revise

Sec. 177.834(i)(3) to read ``For the purposes of this part the delivery

hose, when attached to the tank motor vehicle, is a part of the

vehicle.'' In explaining the proposed reinsertion of limiting words

``for the purposes of this part,'' the NLPGA stated: ``We have no

objection to a requirement that the motor vehicle operator or motor

vehicle attendant be expected to attend the unloading hose as well as

the vehicle since in most cases he will provide the hose and will have

connected it to the unloading equipment. We don't feel the delivery

hose should be considered as a part of the motor vehicle.'' (Emphasis

added). Industry's comments on the HM-110 NPRM indicate that industry

fully understood that the Board proposed to require an attendant to

remain within 25 feet of the cargo tank motor vehicle and hose, and

maintain an unobstructed view of the cargo tank motor vehicle and hose.

It is apparent from the NLPGA's comments to the proposed changes to

Sec. 177.834(i) that it understood the Board's concerns and its intent.

In the HM-110 final rule, the language that currently appears at

Sec. 177.834(i)(3), other than the addition of metric conversion of 25

feet, was adopted by the Board. Section 177.834(i)(3) currently reads,

``A person `attends' the loading or unloading of a cargo tank if,

throughout the process, he is awake, has an unobstructed view of the

cargo tank, and is within 7.62 meters (25 feet) of the cargo tank.''

Section 177.834(i)(5) currently reads, ``A delivery hose, when attached

to the cargo tank, is considered a part of the vehicle.'' In the final

rule, the Board adopted the language in Sec. 177.834(i)(3) that refers

to the ``cargo tank'' and not the ``tank motor vehicle,'' as proposed

in the NPRM. The language in Sec. 177.834(i)(5), however, continues to

refer to the hose as part of the vehicle. The final rule requires a

qualified person attending the loading or unloading of a cargo tank to

remain within 25 feet of the cargo tank, maintain an unobstructed view

of the cargo tank, and to attend the hose to the same extent that the

qualified person attends to the cargo tank motor vehicle under the HMR.

AmeriGas also cites Shell Oil Company's October 26, 1973 comments

to the Board's proposed revision of the attendance requirements in

Docket HM-110 as support for its interpretation of the attendance

requirements and evidence that the agency was aware of the industry's

interpretation of the attendance requirements. Specifically, AmeriGas

points to Shell Oil's comment that ``Section 177.834(i)(1) requiring an

attendant within 25 feet of the tank motor vehicle or its hose is over

restrictive in cases where tight fill connections are used which are

now in the majority.'' (Emphasis added.) AmeriGas places great weight

on the fact that Shell used the word ``or'' rather than ``and'' to

describe the proposed requirements. AmeriGas states that the word

``or'' put DOT on notice that the proposed language was being

interpreted to allow an operator to comply with the attendance

requirements by remaining within 25 feet of any part of the hose and

maintaining an unobstructed view of any part of the hose.

AmeriGas, however, did not recognize or discuss the next sentence

in Shell's comments which reads, ``This restriction prohibits

performance of other duties and would unnecessarily increase delivery

costs.'' (Emphasis added). AmeriGas's interpretation of the attendance

requirements would allow an operator to be within 25 feet of and have

an unobstructed view of, any part of the CTMV including, any part of

its hose. Under AmeriGas's interpretation, there is virtually no

restriction on an operator's ability to perform other duties--an

operator can be virtually anywhere between the cargo tank motor vehicle

and the receiving tank--and a single operator can always satisfy the

industry interpretation of the attendance requirements. The preceding

regulatory history indicates that the Board intended to restrict the

movement of the person unloading a cargo tank by requiring the operator

to remain within 25 feet of the cargo tank and maintain an unobstructed

view of the cargo tank, resulting in a limitation on the attendant's

ability to perform other duties or activities. The type of

precautionary action the Board contemplated when it initiated HM-110

cannot be taken if a cargo tank attendant is more than 25 feet away

from the cargo tank, out of sight behind a building or other

obstruction, or both. This sentence indicates that Shell understood

that the Board was proposing new restrictions on unloading operations.

RSPA squarely rejected industry's interpretation of the attendance

requirements during public meetings and workshops, in written

correspondence,2 and in the preamble to

[[Page 65192]]

the August 18, 1997 final rule.3 Specifically, the preamble

to the final rule states:

\2\ See October 3, 1997 letter to Barton Day, Esq., counsel for

Ferrellgas, L.P., Suburban Propane, L.P., AmeriGas Propane L.P.,

Agway Petroleum Corporation, Cornerstone Propane Partners, L.P., and

National Propane, L.P. (item no. 188 in RSPA docket 97-2133).

\3\ Because of industry's concerns about the attendance

requirements, RSPA indicated in a June 9, 1997 notice [62 FR 31363]

that it would initiate a new rulemaking to review and possibly

revise the attendance and other regulatory requirements (see Docket

No. RSPA-97-2718).

---------------------------------------------------------------------------

RSPA rejects the industry's interpretation of the long-standing

operator attendance rules in Sec. 177.834(i)(3) that a single

operator satisfies requirements for an unobstructed view of the

cargo tank, and is within 25 feet of the cargo tank, merely by being

in proximity to, and having an unobstructed view of, any part of the

delivery hose, which may be 100 feet or more away from the cargo

tank motor vehicle, during the unloading (transfer) operation. The

rule clearly requires an operator be in a position from which the

earliest signs of problems that may occur during the unloading

operation are readily detectable, thereby permitting an operator to

promptly take corrective measures, including moving the cargo tank,

actuating the remote means of automatic closure of the internal

self-closing stop valve, or other action, as appropriate. RSPA

contends the rule requires that an operator always be within 25 feet

of the cargo tank. Simply being within 25 feet of any one of the

cargo tank motor vehicle's appurtenances or auxiliary equipment does

not constitute compliance.

62 FR at 44044.

Because RSPA's position is consistent with the regulatory history

and plain language of 49 CFR 177.834(i), petitioner's request that RSPA

withdraw its interpretation is denied.

2. Additional Notice and Comment Are Not Required Under the APA.

AmeriGas alleges that RSPA's ``new interpretation'' was announced

without notice or opportunity to comment, in violation of the APA.

Section 553 of the APA requires that Federal agencies give the

public an opportunity to participate in the rulemaking process by

giving notice, in the Federal Register, of either the terms or

substance of a proposed rule or a description of the subjects and

issues involved, and an opportunity to submit written data, views, or

arguments. As discussed above, the Board realized that the word

``attendance'' was vague, as used in the original ICC attendance

regulations, and that there was industry confusion regarding what was

required. Consequently the Board issued an NPRM, in docket HM-110,

proposing to clarify the attendance requirements. In issuing the NPRM,

the Board specifically noted that there had been several dangerous

incidents during the loading or unloading of cargo tank motor vehicles

that the Board felt could have been avoided had someone been near the

cargo tank to take corrective or precautionary action.

The Board's clearly specified reasons for undertaking the HM-110

rulemaking, in conjunction with the proposed regulatory language,

NLPGA's and Shell Oil's comments on that language, and the language of

the final regulatory requirements all demonstrate that: (1) the public

was given notice of the Board's intent to require an operator to be

near the cargo tank during unloading, and an opportunity to comment;

and (2) RSPA's position on the Sec. 177.834(i) attendance requirement

is long-standing and reflects industry understanding of the

requirements at the time they were proposed and adopted. Therefore,

RSPA's statements concerning the attendance requirements in

Sec. 177.834(i) do not in any way change the regulations or constitute

rulemaking. Consequently, further notice and comment under the APA is

not necessary.

3. DOT Was Not Aware of Widespread Non-Compliance.

AmeriGas claims that in the decades before--and 22 years since--the

attendance requirements in Sec. 177.834(i) were adopted, small CTMVs

typically carried delivery hoses of 100 feet or more in length and were

attended during at least a substantial portion of the unloading process

from the position of the customer tank. AmeriGas states that these

vehicles have operated openly and have been inspected by DOT officials

on hundreds of occasions over the years without any suggestion that the

routine operation of these vehicles under the industry's interpretation

of Sec. 177.834(i)(3) was improper. AmeriGas thus asserts that DOT has

accepted for decades without question industry's long-standing practice

of not remaining within 25 feet of the cargo tank and not maintaining

an unobstructed view of it.

Although, FHWA inspectors occasionally inspect small CTMVs at

roadside inspection facilities, they do not inspect the hose to

determine its length as part of their routine inspection procedures.

Neither the HMR nor the Federal Motor Carrier Safety Regulations, 49

U.S.C. Parts 350-399, restrict hose length. Additionally, neither FHWA

nor RSPA inspectors routinely inspect small CTMV unloading operations.

Thus, the Department was not aware that small CTMV deliveries of

propane were being made in violation of the HMR. The fact that FHWA

inspectors may have observed small CTMVs with hose lengths in excess of

100 feet does not support the argument that DOT knew that deliveries

were being made in violation of the HMR.

The National Fire Protection Association (NFPA) publication

``Standard for the Storage and Handling of Liquefied Compressed Gases''

(NFPA 58) reported by NFPA as adopted by 49 of 50 states (with Texas

preparing to adopt NFPA 58 next year), has unloading requirements that

are consistent with and provide support to the HMR requirement that a

qualified person maintain an unobstructed view of the cargo tank, and

be in a position to promptly effect emergency procedures should there

be a line separation or other problem requiring immediate attention.

Specifically, at Section 4-2.1.1, NFPA 58 states:

Transfer operations shall be conducted by qualified personnel

meeting the provisions of Section 1-5. At least one qualified person

shall remain in attendance at the transfer operation from the time

connections are made until the transfer is completed, shutoff valves

are closed, and lines are disconnected. (Emphasis added).

In addition, Section 4-2.3.3 of NFPA-58 requires:

Cargo vehicles (see Section 6-3) unloading into storage

containers shall be at least 10 feet (3.0 m) from the container and

so positioned that the shutoff valves on both the truck and the

container are readily accessible. (Emphasis added).

The fourth edition of the LP Gases Handbook, published by the NFPA

interprets Section 4-2.3.3 as follows: ``* * * The unloading cargo

vehicle should be a distance from the container receiving the product

so that if something happens at either point, the other will not be

involved to the extent that it would be if it were in close proximity.

Also, it is important to have the cargo vehicle so located that it is

easy to get to the valves on both the truck and the container so that

they can quickly be shut off if there is an emergency need to do so. *

* * '' 4 NFPA recognizes the importance of attending both

the receiving tank and the cargo tank. RSPA believes that both warrant

attention during unloading and that it is important to position these

tanks so that this safety objective is achievable.

---------------------------------------------------------------------------

\4\ Theodore C. Lemoff, ed., LP-GASES Handbook, 4th ed. (Quincy:

National Fire Protection Association, 1995), p. 307.

---------------------------------------------------------------------------

The importance of having a qualified person in a position to

promptly effect closure of the internal valve and to shut down all

motive and auxiliary power has been re-affirmed by two recent unloading

incidents that resulted in the death of one operator and injury to

[[Page 65193]]

another.5 These incidents did not involve the separation of

hose or piping, which emergency discharge control system requirements

are meant to address, but were the result of equipment failures, which

the attendance requirements in Sec. 177.834(i) are meant to address.

The CTMV was the suspected source of ignition in both of these

incidents. Based on initial reports, had a qualified person been in

attendance within 25 feet of the CTMV, he would have had a better

chance of closing the internal self-closing stop valve prior to

ignition.

---------------------------------------------------------------------------

\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