Hazardous Materials: Revision to Regulations Governing Transportation and Unloading of Liquefied Compressed Gases (Chlorine)

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 177 and 180

[Docket No. RSPA-97-2718 (HM-225A)]

RIN 2137-AD07

Hazardous Materials: Revision to Regulations Governing

Transportation and Unloading of Liquefied Compressed Gases (Chlorine)

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule; response to petition for reconsideration; limited

stay of implementation date; correction; request for comments.

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SUMMARY: On May 24, 1999, RSPA published a final rule to revise

regulations applicable to the transportation and unloading of liquefied

compressed gases. The revisions included new inspection, maintenance,

and testing requirements for cargo tank discharge systems; revised

attendance requirements applicable to liquefied petroleum gas and

anhydrous ammonia; and revised requirements for cargo tank emergency

discharge control equipment to provide a clear performance standard for

passive emergency discharge control equipment that shuts down unloading

operations without human intervention. The revised requirements also

provide for a remote capability for certain cargo tanks to enable a

person attending the unloading operation to shut off the flow of

product when away from the motor vehicle during delivery. This document

responds to a petition for reconsideration, delays implementation of

one provision of the final rule as it applies to chlorine unloading

operations, and corrects an instruction in the final rule.

DATES: Effective Dates: This final rule is effective July 8, 1999. The

effective date for the final rule published on May 24, 1999, remains

July 1, 1999. Implementation Date: The implementation date for

Sec. 177.840(t) as it applies to chlorine cargo tanks is delayed until

January 1, 2000.

Comment Date: Submit comments on or before September 7, 1999.

ADDRESSES: Address written comments to the Dockets Management System,

U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW,

Washington, DC 20590-0001. Identify the docket number RSPA-97-2718 at

the beginning of your comments and submit two copies. If you want to

receive confirmation of receipt of your comments, include a self-

addressed, stamped postcard. You may also submit comments by e-mail by

accessing the Dockets Management System on the Internet at ``http://

dms.dot.gov'' or by fax to (202) 366-3753.

The Dockets Management System is located on the Plaza Level of the

Nassif Building at the Department of Transportation at the above

address. You can review public dockets there between the hours of 9:00

a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. In

addition, you can review comments by accessing the docket management

system through the DOT home page (http://dms.dot.gov).

FOR FURTHER INFORMATION CONTACT: Jennifer Karim or Susan Gorsky, Office

of Hazardous Materials Standards, Research and Special Programs

Administration, (202) 366-8553; or Nancy Machado, Office of the Chief

Counsel, Research and Special Programs Administration, (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

On May 24, 1999, the Research and Special Programs Administration

(RSPA; ``we'') published a final rule under Docket No. RSPA-97-2718

(HM-225A) (64 FR 28030). The final rule revised regulations applicable

to the transportation and unloading of liquefied compressed gases. The

revisions include new inspection, maintenance, and testing requirements

for cargo tank discharge systems, including delivery hose assemblies,

and revised unloading attendance requirements applicable to liquefied

petroleum gas and anhydrous ammonia to take account of certain unique

operating characteristics.

Further, the final rule revised requirements for cargo tank

emergency discharge control equipment to provide a clear performance

standard for passive emergency discharge control equipment that shuts

down unloading operations without human intervention. The revised

requirements also provide for a remote capability for certain cargo

tanks to enable a person attending the unloading operation to shut off

the flow of product when unloading duties require the person to be away

from the motor vehicle during delivery.

The final rule allows two-years for development and testing of

emergency discharge control technology. After two years, newly

manufactured MC 331 cargo tank motor vehicles must be equipped with

emergency discharge control equipment that conforms to the performance

standards; MC 330, MC

[[Page 36803]]

331 and certain nonspecification cargo tank motor vehicles already in

service must be retrofitted at their first scheduled pressure test

after the two-year period. These revisions are intended to reduce the

risk of an unintentional release of a liquefied compressed gas during

unloading, assure prompt detection and control of an unintentional

release, and make the regulatory requirements easier to understand and

comply with.

II. Negotiated Rulemaking Process

The May 24, 1999 final rule was developed through a negotiated

rulemaking. In a negotiated rulemaking, representatives of interests

affected by a regulation meet as an advisory committee to discuss the

safety issues and to identify potential solutions. The group attempts

to reach consensus on a proposed solution and prepares a recommendation

for a notice of proposed rulemaking to be made by the agency. This

process is intended to give parties the opportunity to find creative

solutions, improve the information data base for decisions, produce

more acceptable rules, enhance compliance, and reduce the likelihood of

court challenges.

For this rulemaking, in addition to the Department of

Transportation (DOT), the negotiated rulemaking committee consisted of

persons who represent the interests affected by this rulemaking,

including businesses that transport and deliver liquefied petroleum

gases, anhydrous ammonia and other liquefied compressed gases;

manufacturers and operators of cargo tanks and vehicle components; and

state and local public safety and emergency response agencies.

From the beginning, our goal has been an open and inclusive process

that would enable anyone with an interest in the rulemaking to provide

information and to comment on proposals. The document announcing our

intention to establish a negotiated rulemaking committee (63 FR 30572;

June 4, 1998) listed those interests that we believed should be

represented on the Committee and invited commenters to identify other

interests that should also be represented. The document identified the

Compressed Gas Association and National Tank Truck Carriers as

organizations that should be included on the Committee to represent the

interests of manufacturers and transporters of liquefied compressed

gases other than liquefied petroleum gas and anhydrous ammonia. We

received no comments suggesting that additional representation should

be considered.

Once the Committee was established, interested parties who were not

selected for membership were invited to attend Committee meetings,

which were open to the public, and to caucus with Committee members

representing their interest on the Committee. Interested parties could

also address the Committee, submit written comments on issues of

concern, and participate in the informal work groups that were

established by the Committee to address certain technical issues and

draft regulatory text. Representatives of the Chlorine Institute

participated in several meetings of the negotiated rulemaking

committee. They were provided with draft rulemaking documents and

encouraged to provide us with comments and suggestions to address any

concerns. Their suggestion to incorporate the Chlorine Institute's

Pamphlet 57 entitled ``Emergency Shut-off Systems for Bulk Transfer of

Chlorine'' into the HMR was adopted, as were several suggestions for

changes to the draft to reflect the unique nature of chlorine unloading

operations. These suggestions were part of the notice of proposed

rulemaking (NPRM) published on March 22, 1999 (64 FR 13856).

The Chlorine Institute submitted formal comments on the NPRM on

April 21, 1999. On April 28, 1999, we met informally with

representatives of the Chlorine Institute to clarify their comments and

to discuss alternatives for addressing their concerns. All but one of

the comments submitted by the Chlorine Institute were accommodated in

the May 24 final rule.

III. Petition for Reconsideration

On June 17, 1999, the Chlorine Institute filed a petition for

reconsideration and motion for partial stay of the final rule. (The

petition for reconsideration and motion for partial stay of the final

rule is reprinted as Appendix A to this final rule. The attachments to

the Chlorine Institute's petition can be reviewed by accessing the

Docket Management System through the DOT home page (http://dms.dot.gov)

or in person at the Dockets Management System at the address indicated

above.) The Chlorine Institute seeks reconsideration of two provisions

of the May 24, 1999 final rule as they apply to cargo tanks used to

transport and deliver chlorine. Specifically, the Chlorine Institute

requests reconsideration of the requirement in Sec. 173.315(n)(2) for

emergency discharge control equipment that operates without human

intervention to be certified by a Design Certifying Engineer (DCE). In

addition, the Chlorine Institute seeks reconsideration and a stay of

the requirement in Sec. 177.840(t) that, until a chlorine cargo tank is

equipped with emergency discharge control equipment that conforms to

requirements in the final rule, the qualified person attending the

unloading operation must remain within arm's reach of a means to stop

the flow of product.

IV. Petition Partially Denied

In Sec. 173.315(n), the May 24, 1999 final rule established

emergency discharge control system requirements for cargo tanks in

liquefied compressed gas service. Cargo tanks transporting materials

that are poisonous by inhalation, including chlorine, are required to

be equipped with a means to automatically stop product flow without

human intervention within 20 seconds of an unintentional release caused

by a complete delivery hose separation, also referred to as a passive

shut-down capability. This section also makes clear that the design for

a passive shut-down capability, including systems installed prior to

July 1, 2001, must be certified by a DCE. The certification must

consider any specifications of the original component manufacturer and

must explain how the passive shut-down capability operates. It must

also outline the parameters (e.g., temperature, pressure, types of

product) within which the passive shut-down capability is designed to

operate. All components of the discharge system that are integral to

the design must be included in the certification.

The Chlorine Institute asserts that the May 24, 1999 final rule

imposes a ``new, unnecessary and wholly unjustified set of additional

regulatory requirements'' for cargo tanks used to transport and deliver

chlorine. The Chlorine Institute states that, because chlorine is

unloaded by pressure rather than by pump, the emergency discharge

control system on chlorine cargo tanks, of which an excess flow valve

is a key component, has operated successfully for 40 years. In light of

its ``flawless'' unloading experience, the Chlorine Institute states

that there is no possible benefit to requiring the emergency discharge

control system on a chlorine cargo tank to be certified by a DCE. The

Chlorine Institute also notes that the excess flow valve used on

chlorine cargo tanks was extensively tested in the 1960s before it was

put into widespread service. According to the Chlorine Institute, test

results (included with the petition as an appendix) indicate that there

will always be sufficient internal pressure in the cargo tank to assure

that the excess flow valve will operate. The Chlorine Institute

continues, ``Given the fact that the excess flow valve was designed

many years ago, there is considerable doubt that the valve itself could

or

[[Page 36804]]

would be certified by a `Design Certifying Engineer' who would have had

no part in its design. While the design certification requirement may

make sense in some circumstances, it plainly makes no sense in the

chlorine situation, and would add nothing to the safety of chlorine

unloading.''

The Chlorine Institute asserts that excess flow valves have

functioned successfully in chlorine cargo tanks since the 1960s and

that tests conducted before they were placed in widespread service

demonstrate that an excess flow valve will close at a pressure well

below the pressure differential that would be experienced in a complete

hose separation during unloading. However, the requirement in the May

24 final rule is for certification of the emergency discharge control

system, of which the excess flow valve is only one component. System

certification was a key issue in the HM-225A negotiated rulemaking. As

individual component manufacturers noted, an excess flow valve is only

required to close if its flow rating, as established by the

manufacturer, is exceeded. Manufacturers of excess flow valves who

participated in the negotiated rulemaking advised that, in addition to

restrictions in downstream piping caused by pumps, other variables may

restrict the circumstances under which an excess flow valve will

operate. Such variables include other restrictions in the discharge

system (e.g., branching, elbows, reductions in pipe diameter), low

operating pressures, or a partially closed valve downstream from the

excess flow valve, all of which restrict the rate of flow through the

excess flow valve. For this reason, the final rule included the

requirement that the entire emergency discharge control system rather

than individual components of the system be certified to meet the new

performance standard. All components of the discharge system that are

integral to the design must be included in the certification. Further,

the certification must specify the parameters (e.g., temperature,

pressure, types of product) within which the system is designed to

operate.

Because of the requirement that the entire emergency discharge

control system rather than individual components of that system be

certified, the May 24 final rule recognizes that component

manufacturers may be reluctant to provide a performance certification

for a system of which their component is only a part. Thus, the final

rule requires that the certification be provided by a DCE, who may be

employed by a cargo tank manufacturer, a component manufacturer, a

cargo tank owner or operator, or a third party. The DCE need not have

had any part in the actual design of the emergency discharge control

system being certified. Rather, the DCE is expected to review design

specifications and test results and to conduct any additional tests

deemed necessary to verify that the system operates as designed within

the parameters specified for its operation. The design for each type of

emergency discharge control system is certified once by a DCE; provided

the system is installed according to the certification, the single DCE

certification serves for all cargo tanks equipped with that type of

system.

The Chlorine Institute proposes that we remove cargo tanks

unloading chlorine by pressurization from the May 24 final rule

requirements. This part of the petition for reconsideration is denied.

We recognize that unintentional releases of liquefied compressed gases

as a result of complete hose separations during unloading are

infrequent occurrences. However, an unintentional release of a gas that

is poisonous by inhalation, such as chlorine, which is a PIH Hazard

Zone B material, may have very serious consequences if it is not

controlled quickly. The requirement in the May 24 final rule for a

passive shut-down capability on chlorine cargo tanks is designed to

address potential risks to public safety associated with low-

probability/high consequence events. The Chlorine Institute has not

provided sufficient information to justify its request for an exception

from this requirement.

As an alternative, the Chlorine Institute suggests that RSPA

clarify that, ``by virtue of [its] 40 years of flawless operation'' and

based on the results of tests conducted on railroad tank car systems in

the 1960s, the chlorine excess flow valve is certified within the

meaning of the May 24 final rule. This part of the petition for

reconsideration is also denied.

We do not believe that DOT certification of components or systems

installed on cargo tanks is either appropriate or necessary. The

principle of cargo tank design certification by a DCE is well-

established in the HMR, and this method for independent certification

of compliance with the cargo tank regulations works well.

Further, certification of the excess flow valve would not meet the

requirements for certification established in the May 24 final rule.

First, the rule requires certification of emergency discharge control

systems, not individual components of those systems. Second, the

certification must include a description of each emergency discharge

control system and the parameters within which the system is designed

to operate. Neither of these requirements is satisfied by the Chlorine

Institute's proposal.

V. Petition Partially Granted and Request for Comments

Section 177.840(t) of the May 24, 1999 final rule requires that,

until a cargo tank in chlorine service is equipped with emergency

discharge control equipment in conformance with the final rule, the

qualified person attending the unloading operation must remain within

arm's reach of a means to stop the flow of product. The Chlorine

Institute notes that chlorine is unloaded from a valve located on top

of the cargo tank. To be within arm's reach of a means to shut down

unloading, a person must ``perch precariously atop than [sic] tank for

the several hours necessary to complete the unloading process.''

The May 24 final rule requires chlorine being unloaded from cargo

tanks after July 1, 2001 to comply with procedures set forth in section

3 of the Chlorine Institute's Pamphlet 57. (This provision does not

apply to unloading of cargo tanks that are equipped with emergency

discharge control systems certified in accordance with Sec. 173.315(n)

of the May 24 final rule.) Facilities equipped for unloading in

conformance with Pamphlet 57 have a remote location from which the

unloading operation can be shut down in the event of an unintentional

release or other emergency. For these facilities, the requirement to be

within arm's reach of a means to shut down unloading is met when the

person attending the unloading operation is within arm's reach of the

remote shut-down location. However, not all facilities are equipped for

unloading in conformance with Pamphlet 57.

We agree with the Chlorine Institute that additional time is

necessary to consider alternatives to the requirement in

Sec. 177.840(t) that the person attending a chlorine cargo tank be

within arm's reach of a means to shut down the unloading operation.

Therefore, the petition for a stay of the implementation date of this

provision of the May 24 final rule is granted. The implementation date

for Sec. 177.840(t), as it applies to chlorine unloading at facilities

that do not conform to Pamphlet 57, is delayed to January 1, 2000.

During that time, we will consider viable alternatives that may be

proposed by interested parties for monitoring the unloading of chlorine

from cargo tanks that are not equipped with an emergency discharge

control system

[[Page 36805]]

certified in conformance with Sec. 173.315(n) of the May 24 final rule.

In addition, we are requesting comments on issues raised in the

Chlorine Institute's petition for reconsideration. Specifically, we

wish to know:

(1) How many cargo tanks are affected by the transition provision

in Sec. 177.840(t) as it applies to chlorine unloading?

(2) How many facilities at which unloading of cargo tanks is

performed by carrier personnel are not yet equipped for unloading in

conformance with Pamphlet 57?

(3) How many unloading operations are conducted at such facilities

each year?

(4) Are there other ways to conduct chlorine unloading operations

that will achieve an equivalent level of safety as required by

Sec. 177.840(t)?

(5) Are all cargo tanks engaged in transporting chlorine fitted

with the same piping configuration, or are there significant

differences?

(6) What other issues should we consider in resolving this issue?

VI. Correction

In the May 24, 1999 final rule, instruction 19 incorrectly

redesignated several paragraphs in Sec. 180.407. This redesignation is

corrected in this final rule.

VII. 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, therefore, was not

reviewed by the Office of Management and Budget. This final rule is not

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 delay in implementation of the transition provision

affecting monitoring of chlorine unloading operations. However, a final

regulatory evaluation was prepared in support of the final rule

published on May 24, 1999. 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'').

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:

(i) the designation, description, and classification of hazardous

material;

(ii) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(iii) the preparation, execution, and use of shipping documents

related to hazardous material and requirements related to the number,

contents, and placement of those documents;

(iv) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; and

(v) the design, manufacturing, fabricating, marking, maintenance,

reconditioning, repairing, or testing of a packaging or container

represented, marked, certified, or sold as qualified for use in

transporting hazardous material.

This final rule addresses covered subjects under item (ii) above

and preempts state, local, or Indian tribe requirements not meeting the

``substantively the same'' standard. Federal hazardous materials

transportation law provides at Sec. 5125(b)(2) that if RSPA issues a

regulation concerning any of the covered subjects RSPA 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. Thus, RSPA lacks discretion in this

area, and preparation of a Federalism assessment is not warranted. The

effective date of Federal preemption for these requirements is October

6, 1999.

C. Executive Order 13084

This final rule has not been analyzed in accordance with the

principles and criteria in Executive Order 13084 (``Consultation and

Coordination with Indian Tribal Governments''). Because revised rules

and regulations in this final rule are not expected to significantly or

uniquely affect communities of Indian tribal governments, the funding

and consultation requirements of this Executive Order do not apply.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an

agency to review regulations to assess their impact on small entities

unless the agency determines that a rule is not expected to have a

significant impact on a substantial number of small entities. RSPA

conducted this assessment for the final rule published May 24, 1999.

The delay in implementation for the transition provision on monitoring

unloading operations from chlorine cargo tanks does not change the

conclusions reached in that assessment. Thus, I hereby certify that

this final rule will not have a significant economic impact on a

substantial number of small businesses.

E. Paperwork Reduction Act

This final rule imposes no new information collection burdens. The

requirements for information collection included in the May 24, 1999

final rule are approved by the Office of Management and Budget under

OMB control number 2137-0595. Under the Paperwork Reduction Act of

1995, no person is required to respond to a collection of information

unless it displays a valid OMB control number.

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 containing in the heading of

this document can be used to cross-reference this action with the

Unified Agenda.

G. Unfunded Mandates Reform Act

This final rule imposes no mandates and thus does not impose

unfunded mandates under the Unfunded Mandates Reform Act of 1995.

H. Impact on Business Processes and Computer Systems

Many computers that use two digits to keep track of dates will, on

January 1, 2000, recognize ``double zero'' not as 2000 but as 1900.

This glitch, the Year 2000 problem, could cause computers to stop

running or to start generating erroneous data. The Year 2000 problem

poses a threat to the global economy in which Americans live and work.

With the help of the President's Council on Year 2000 Conversion,

Federal agencies are reaching out to increase awareness of the problem

and to offer support. We do not want to impose new requirements that

would mandate business process changes when the resources necessary to

implement those requirements would otherwise be applied to the Year

2000 problem.

This final rule does not mandate business process changes or

require modifications to computer systems. Because this rule apparently

does not affect organizations' ability to respond

[[Page 36806]]

to the Year 2000 problem, we do not intend to delay the effectiveness

of the requirements.

I. Environmental Assessment

RSPA did not perform an environmental assessment of this final

rule. RSPA did conduct an environmental assessment for the final rule

published May 24, 1999. The delay in implementation for the transition

provision on monitoring unloading operations from chlorine cargo tanks

does not change the conclusions reached in that assessment.

List of Subjects

49 CFR Part 177

Hazardous materials transportation, Motor carriers, Radioactive

materials, Reporting and recordkeeping requirements.

49 CFR Part 180

Hazardous materials transportation, Motor carriers, Motor vehicle

safety, Packaging and containers, Railroad safety, Reporting and

recordkeeping requirements.

In consideration of the foregoing, we are amending 49 CFR parts 177

and 180 as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

1. The authority citation for part 177 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53

2. In Sec. 177.840, in paragraph (t) the last sentence is revised

to read as follows:

Sec. 177.840 Class 2 (gases) materials.

* * * * *

(t) * * * For chlorine cargo tanks unloaded after December 31,

1999, the qualified person must remain within arm's reach of a means to

stop the flow of product except for short periods when it is necessary

to activate controls or monitor the receiving container.

* * * * *

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

3. In rule document 99-12860, beginning on page 28030 in the issue

of Monday, May 24, 1999, make the following correction:

Sec. 180.407 [Corrected]

On page 28051, column 2, in amendatory instruction 19., beginning

in the second line, correct ``existing paragraphs (h)(4) through (h)(8)

are redesignated as paragraphs (h)(5) through (h)(9), respectively'' to

read ``existing paragraph (h)(4) is redesignated as paragraph (h)(5)''.

Issued in Washington, DC on June 29, 1999, under authority

delegated in 49 CFR Part 1.

Kelley S. Coyner,

Administrator.

Appendix A to the Preamble

Expedited Consideration Requested

Before the United States Department of Transportation, Research and

Special Programs Administration

Docket No. RSPA-97-2718 (HM-225A)

Hazardous Materials: Revision to Regulations Governing Transportation

and Unloading of Liquefied Compressed Gases

Motion for Partial Stay of the Final Rule and Petition of the Chlorine

Institute, Inc. for Reconsideration and Clarification of the Final Rule

I. Introduction

Pursuant to the provisions of 49 CFR Sec. 106.35, the Chlorine

Institute, Inc., hereby files this Motion for Partial Stay and

Petition for Reconsideration and Clarification of the final rule

issued in this docket.

The final rule issued on May 24, 1999, (64 F.R. 28030) creates a

new, unnecessary, and wholly unjustified set of additional

regulatory requirements for MC 330 and MC 331 cargo tank motor

vehicles when unloading chlorine. These new regulatory requirements

are unsupported by the record of this docket, and ignore 40 years of

flawless chlorine unloading experience. The Chlorine Institute, Inc.

submits that these requirements should either be withdrawn, or so

modified as to remove their more onerous provisions.

II. Background of the Rulemaking

Section 178.337-11(a)(1)(i) of Title 40 CFR provides that with

respect to cargo tank motor vehicles used to transport chlorine, as

well as other compressed gases:

Each internal self-closing stop valve and excess flow valve must

automatically close if any of its attached hoses are sheared off or

if any attached hoses or piping are separated.

In it final rule in Docket HM-225 issued August 18, 1997, RSPA

noted that ``efforts undertaken by the affected industries (not

including the chlorine industry) to achieve increased efficiency in

the unloading of hazardous materials by the installation of pumps on

specification MC 330 and MC 331 cargo tank motor vehicles prevent

emergency discharge control systems from operating properly under

all temperatures and pressures routinely encountered during normal

conditions or transportation.'' (62 F.R. 44039) In the same

document, RSPA noted that the problems encountered by MC 330 and MC

331 cargo tank motor vehicles using pumps to unload did not exist

when pressure, rather than pumps, were employed. Thus, RSPA held:

Unloading systems that employ pressure rather than a pump to

unload such as a gas compressor mounted on specification MC 330 and

MC 331 cargo tank motor vehicles should not be affected by the

problem identified with unloading of liquefied compressed gases by

use of pumps, provided the operating pressure of the compressor, the

flow rate of product through valves, piping, and hose, and the

setting of the emergency feature conform to requirements in

Sec. 178.337-11(a)(1)(v). Vehicles unloaded by pressure and

conforming to the requirements of Sec. 178.337-11(a)(1) are not

subject to the temporary regulations specified in Sec. 171.5. (62

F.R. 44039)

Throughout the HM-225A rulemaking procedures that followed the

HM-225 final rule, there was never any doubt but that chlorine is

unloaded under pressure within the meaning of the HM-225 final rule.

Further, there never has been any question but that the excess flow

valves used on MC 330 and MC 331 cargo tank motor vehicles

transporting chlorine (CI Drawings 101 and 104) comply fully with

Sec. 178.337-11(a)(1)(v). In addition, the Chlorine Institute is

unaware of, and the record herein fails to disclose, a single

incident in the 40 years these valves have been in use in chlorine

service where such excess flow valve has failed to operate properly.

III. The Final Rule

While the HM-225 and HM-225A rulemaking procedures focused

almost entirely on the failures of pump unloading systems involving

liquefied petroleum gas and anhydrous ammonia, the final rule places

regulatory requirements on pressure unloading chlorine cargo tank

motor vehicles as well. It is not surprising therefore that the

final rule is ill-considered and erroneous as it applies to chlorine

unloading.

The final rule impacts chlorine motor vehicle unloading in two

fundamental respects. First, the new section 173.351(n)(2) requires

that a ``Design Certifying Engineer'' certify that the excess flow

valve so long and so successfully used on MC 330 and MC 331 cargo

tank motor vehicles is, in fact properly designed and will operate

within the necessary parameters to satisfy the rule.

Secondly, section 177.840(t) requires that until the chlorine

cargo tank transfer system is certified, a qualified person must be

within arms length of the chlorine cargo tank's valve located on the

top of the cargo tank. Thus, the qualified person must perch atop

the tank to meet the requirement. It must be noted, of course, this

requirement does not apply when the tank is being unloaded after the

tank has been separated from the motive power unit and that unit has

left the facility.

With respect to the design certification requirement for

chlorine cargo tanks, the final rule is wholly unwarranted. With

respect to the arms length requirement, it is not only unwarranted,

it creates an unsafe condition while only partially attaining its

ill-considered objective.

IV. Reasons for Reconsidering the Final Rule

As noted above, the problems that gave rise to the HM-225 rules,

and ultimately to this docket, have nothing to do with the unloading

of chlorine. Chlorine, unloaded by pressure rather than by pump, has

not been

[[Page 36807]]

released during the unloading process. The excess flow valves have

operated successfully for 40 years, and there is no allegation that

chlorine cargo tank vehicles equipped with those valves do not

comply fully with Sec. 178.336-11(a)(1)(i).

What possible benefit, therefore, follows from a certification

by a ``Design Certifying Engineer'' that the valve will properly

operate when it has properly operated for 40 years? The answer, of

course, is none.

In addition to its flawless operation, the excess flow valve

used on chlorine cargo tank motor vehicles was extensively tested in

the 1960's before it was put into widespread service. As the

materials attached hereto as Appendix A demonstrate, the excess flow

valve, peer CI Drawings 101 and 104 will close at a pressure of 9

psig, a value well below the pressure differential that would be

experienced in a complete hose separation during unloading. Since,

as previously noted, chlorine is unloaded by pressurizing the tank,

there will always be sufficient internal pressure to ensure that the

excess flow valve will operate as required.

Given the fact that the excess flow valve was designed many

years ago, there is considerable doubt that the valve itself could

or would be certified by a ``Design Engineer'' who would have had no

part of its design. While the design certification requirement may

make sense in some circumstances, it plainly makes no sense in this

chlorine situation, and would add nothing to the safety of chlorine

unloading.

The arms length requirement discussed above suffers from two

major flaws. First, the majority of chlorine MC 330 and MC 331 tanks

are unloaded after the motive power has been detached and has left

the receiving facility. Thus, under sections 171.8, 177.834, and

178.337-11, the detached tank is no longer a cargo tank within the

meaning of the Hazardous Materials Regulations, and is no longer

subject to the provisions of the final rule.

Of greater importance is the fact that, unlike propane and

ammonia tanks, the chlorine tank is unloaded from a valve located

atop the tank. Accordingly, for a person to be within arms length of

the valve during unloading he or she must perch precariously atop

the tank for the several hours necessary to complete the unloading

process. This requirement reflects the fact that the chlorine tank

was never really considered during the rulemaking process, and

appears in the final rule unexpectedly and inappropriately. Further,

since the arms length provisions of the final rule become effective

on July 1, 1999, a serious safety issue is present.

In view of the safety concerns raised with respect to chlorine

unloading, the final rule should be stayed insofar as it would

require persons to stand atop chlorine MC 330 or MC 331 cargo tank

motor vehicles during chlorine unloading.

V. Proposed Solution

The Chlorine Institute participated in this rulemaking in only a

minor way for the reasons described above. The Institute has no

desire to complicate this matter to any degree greater than is

necessary to overcome the obvious and serious problems discussed

herein. Thus, the Institute proposed to resolve the problems created

by the final rule in the simplest and least disruptive way possible.

The genesis of the problems raised by the final rule is the

requirement that the chlorine excess flow valve be certified by a

``Design Certifying Engineer.'' A clarification of the final rule by

RSPA that acknowledges that the chlorine excess flow valve, by

virtue of the materials attached in Appendix A, and by virtue of the

40 years of flawless operation, has been certified within the

meaning of the rule would eliminate all problems associated with

implementation of the rule.1

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\1\ It must be noted, of course, that the excess flow valve

discussed herein is designed to, and does operate in the event of a

complete separation of the unloading hose. In this regard it fully

satisfies the provisions of 49 CFR Sec. 178.337-11(a)(1)(1).

Chlorine Institute Pamphlet 57 referenced by RSPA in this rule,

contains a system for dealing with incidents that do not involve a

complete separation and therefore do not trigger the requirements of

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

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To be sure, such a clarification would not deal with the obvious

problem that the rules should never have addressed pressurized

unloading in the first place. But, at least it would eliminate the

serious practical problems facing the industry as a result of the

ill-advised inclusion of the chlorine in the rulemaking process, and

would remove the requirement for a qualified person to perch atop a

cargo tank for the minimum period of three necessary to unload a

chlorine cargo tank.

VI. Conclusion

In view of the foregoing, the Institute submits that the final

rule be modified so as to remove cargo tanks and cargo tank motor

vehicles unloading chlorine by pressurization from the requirements

of the rule. In the alternative, the Institute requests that RSPA

clarify the final rule so as to determine that chlorine excess flow

valves in use on MC 330 and MC 331 chlorine cargo tank motor

vehicles have been certified within the meaning of the rule.

In addition, inasmuch as the arms length requirements of the

rule become effective on July 1, 1999, and enforcement of those

provisions could cause serious risks to persons unloading chlorine,

the Institute moves that those requirements be stayed while this

petition is reviewed by RSPA.

Respectfully submitted,

Paul M. Donovan,

LaRoe, Winn, Moerman & Donovan, 3900 Highwood Court, N.W., Washington,

DC 20007, (202) 298-8100, Attorney for Petitioner.

Dated at Washington, DC, June 17, 1999.

[FR Doc. 99-17124 Filed 7-7-99; 8:45 am]

BILLING CODE 4910-60-P