{"operation":"document","citation":"24-0112","title":"National Propane Gas Association — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2025-08-12","effective_on":null,"summary":"24-0112 response to National Propane Gas Association concerning 173.315.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0112.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0112.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0112","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2025-08/240112.pdf","body":"<<>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nAugust 12, 2025\nBenjamin A.F. Nussdorf\nGeneral Counsel/Vice President, Regulatory & Industry Affairs\nNational Propane Gas Association\n1140 Connecticut Avenue, NW\nSuite 1075\nWashington, DC 20036\nReference No. 24-0112\nDear Mr. Nussdorf:\nThis letter is in response to your November 18, 2024 email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to emergency\ndischarge control equipment for liquefied compressed gas in cargo tank motor vehicles\n(CTMVs). Regarding metered service, it is your understanding that the phrase “shut off all\nmotive and auxiliary power equipment” located in § 173.315(n)(3) of the HMR refers only to\nshutting down the equipment used for product transfer to prevent uncontrolled or accidental\ndischarge of hazardous material and the vehicle engine. Specifically, you ask whether this\nlanguage in § 173.315(n)(3) is meant to only shut off product transfer equipment and the\nvehicle’s engine but not to shut off all electrical power on the vehicle.\nYour understanding is correct. As provided by § 173.315(n)(3), the phrase “all motive and\nauxiliary power equipment” refers only to the vehicle’s engine and the equipment that is directly\nresponsible for operating the vehicles product transfer system—not all electrical power to the\nvehicle. The intent of the regulation is to close the internal self-closing stop valve and shut off all\nmotive and auxiliary power equipment upon activation to prevent uncontrolled or accidental\ndischarge of hazardous materials and eliminate potential sources of ignition.\n\n<<>>\n\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk DerKinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nHorne\n24-0112\nFrom: Patrick, Eamonn (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Andrews, Steven (PHMSA); Wolcott, Alexander (PHMSA)\nSubject: FW: NPGA Request: Letter of Interpretation for Remote Power Shut Off Regulations\nDate: Monday, November 18, 2024 1:02:42 PM\nAttachments: image001.png\nPHMSA-RSPA-1997-2133-0122_content.pdf\nPHMSA-RSPA-1997-2133-0215_attachment_1 RSPA Guidance.pdf\nPHMSA-RSPA-2133-168 - Remtron.pdf\nRSPA Attachment A.pdf\nRSPA Attachment B.pdf\nRSPA Attachment C.pdf\nNPGA Request for Letter of Interpretation - Remote Power Shut Off.pdf\nGood afternoon Alice,\nPlease check this in as a LOI. The request is the attachment titled “NPGA Request for Letter of\nInterpretation – Remote Power Shut Off.” The other attachments are reference materials to provide\ncontext and information for the request. The person assigned can reach out to Steven and/or me for\nfurther background on this issue.\nThanks!\n-Eamonn\nFrom: Benjamin Nussdorf \nSent: Monday, November 18, 2024 12:57 PM\nTo: Patrick, Eamonn (PHMSA) ; Andrews, Steven (PHMSA)\n; Wolcott, Alexander (PHMSA) \nSubject: NPGA Request: Letter of Interpretation for Remote Power Shut Off Regulations\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nDear Mr. Patrick, Mr. Andrews, and Mr. Wolcott:\nThank you for your engagement with NPGA and its members regarding the Remote Power Shut Off\nRegulations. Attached, please find our request for a letter of interpretation and supporting materials.\nThank you for your consideration and review.\nSincerely,\nBenjamin Nussdorf\nBenjamin A.F. Nussdorf\nGeneral Counsel/Vice President, Regulatory & Industry Affairs\nNATIONAL PROPANE GAS ASSOCIATION\n1140 Connecticut Avenue, NW\n\n<<>>\n\nSuite 1075\nWashington, DC 20036 USA\n202 355 1321 PHONE\n202 365 2638 CELL\n202 466 7205 FAX\nbnussdorf@npga.org\nwww.npga.org\n\n<<>>\n\nNovember 18, 2024\nEamonn Patrick\nSteven Andrews\nAlexander Walcott\nPipeline and Hazardous Materials Safety Administration (PHMSA)\nUnited States Department of Transportation\n1200 New Jersey Ave. SE\nWashington, DC 20590\nRe: Remote Power Shut Off Discussions\nDear Mr. Patrick, Mr. Walcott, and Mr. Andrews:\nThe National Propane Gas Association (NPGA) respectfully submits this request in response to our\nmeetings of July 29th and September 30th, 2024. In those meetings, which included NPGA, PHMSA, the\nFederal Motor Carrier Safety Administration (FMCSA), the State of North Carolina, BASE Engineering,\nand Mississippi Tank, PHMSA requested information on the preamble of the prior rulemaking, analysis\nfrom BASE Engineering on system operations, and information from Mississippi Tank on the prior\nnegotiated rulemaking. The aim of this request is to provide justification for a letter of interpretation (LOI)\nfrom the Research and Special Programs Administration (RSPA) which will clarify and refine the\nunderstanding of the remote shut off regulations in HMR-225 and what they intend to encompass.\nNPGA is the national trade association of the propane industry with a membership of about 2,300\ncompanies, and 36 state and regional associations that represent members in all 50 states. Membership in\nNPGA includes retail marketers of propane gas who deliver the fuel to the end user, propane producers,\ntransporters and wholesalers, and manufacturers and distributors of equipment, containers, and appliances.\nPropane gas fuels millions of installations nationwide for home and commercial heating and cooking, in\nagriculture, industrial processing, and as a clean air alternative engine fuel for both over-the-road vehicles\nand industrial lift trucks. Roughly 75% of NPGA’s members have fewer than 100 employees, and are\nconsidered small businesses.\nPreamble:\nNPGA staff has evaluated the documents relevant to the remote shut off section of the Hazardous Materials\nRegulations (HMR) and offers the following for your consideration. Principally, the regulatory evaluation\nestablished that use of a radio frequency transmitter communication with receiver equipment on board the\nvehicle capable of closing the stop valve met the requirements of “immediately activate the internal self-\nclosing stop valve to shut down all motive and auxiliary power equipment,” in order to prevent unauthorized\nor uncontrolled release (See RSPA Attachment A at Page 12). PHMSA noted in the Federal Register that\nthe elimination of unauthorized or uncontrolled discharge by actuating the remote means of automatic\nclosure of the internal self-closing stop valve, rather than the deenergizing entire vehicle, was the primary\nobjective.1\nNPGA has been consistent in prior rulemakings to cover this problem. Included in its engagement are initial\ncomments on the HMR (See RSPA Attachment B). NPGA, and the propane industry as a whole, have never\nadvocated or supported the contention that the entire vehicle lose power because, as noted on the July 29th\ncall, such an action would represent an unacceptable safety risk to the operator and the public.\n1 See e.g. PHMSA-RSPA-97-2133-0122 at 8-10, 13, noting the intent to disengage power to the discharge system.\n\n<<>>\n\nFurther, PHMSA’s own regulatory actions in this field have focused on the need to stop the flow of product\nremotely in the sake of safety, rather than the shutdown of the entire vehicle. (See RSPA Attachment C, at\nPage 9-10). In that document, PHMSA stresses the focus is the ability of the operator to engage or disengage\nthe motor vehicle PTO or other mechanical, electrical, or hydraulic means used to energize the pump and\nother components of a cargo tank motor vehicle’s discharge system. PHMSA did not stress the need to\nshut down all power to the vehicle. In all situations and in all potential explanations, RSPA rules with\nrespect to remote shut down have focused on shutting down the components and the power to the discharge\nsystem, rather than the vehicle itself.\nIn PHMSA’s documents in this docket, RSPA 97-2133 (HM-225), PHMSA noted the need to “ensure an\nacceptable level of safety for delivery of liquefied compressed gases.”2 These regulations evidence\nPHMSA’s intent to regulate emergency discharge controls,3 rather than regulate all power to the vehicle.\nPHMSA’s questions and documents on this issue focus principally on discharge, rather than eliminating all\npower to the vehicle.4 PHMSA notes elsewhere that the rules have been essentially unchanged since 1941,\nfocusing on controls for excess flow valves and internal self-closing stop valves; while regulations in the\n1990s provided for secondary remote controls and for fusible links, allowing the internal valves to close\nautomatically in the case of a cargo tank being involved in a fire.56 Without question, PHMSA has intended\nto have the remote shut off portion of the HMR apply to valve and discharge equipment since their\ninception, rather than apply to the entire vehicle.\nAuxiliary Power Equipment:\nThe intent of the regulation is clear through examination of the HMR as a whole. “A cargo tank motor\nvehicle must have an off-truck remote means to close the internal self-closing stop valve and shut off all\nmotive and auxiliary power equipment upon activation by a qualified person…”7 The aim of this regulation\nis to stop the flow of product in an emergency situation, not to shut down all electric power to the vehicle,\nwhich would result in an unacceptable and unprecedented safety concern to the driver and to public safety.\nOther parts of the same regulation specifically focus on the need to stop the flow of product in an emergency\nsituation.8 While the operative portion of the regulation is not precisely worded, taken as a whole, the\nremote shut off portion of the HMR’s goal is to stop the flow of product by means of a remote shut down\nto the product’s valves and mechanical power to the pump.\nFurther, while not defined in the hazardous materials section, an “auxiliary power unit” is defined elsewhere\nin the regulations. It is possible that the omission of defining auxiliary power equipment in this section is\nsimply an oversight, but the regulations taken as a whole do provide a definition of auxiliary power unit.\n9\nNPGA requests that PHMSA clearly state in LOI that these available definitions of auxiliary power unit\napply to the remote power shut off regulations, and that auxiliary power unit and auxiliary power equipment\nhave the same definition in the HMR.\n2 62 Fed. Reg. 44059 (Aug. 18, 1997).\n3 Id.\n4 Id. at 44060.\n5 62 Fed. Reg. 44038 (Aug. 18, 1997).\n6 See also PHMSA-RSPA-97-2133-168 at 2-4, 6, 13, noting REMTRON’s presentation identifying the immediate\nclosure of an emergency shut down device by way of closing the internal valve and stopping the discharge process\nthrough disengagement of the pump inclusive of engine shut down.\n7 49 CFR 173.315(n)(1).\n8 49 CFR 173.315(n)(2).\n9 49 CFR 535.4; 40 CFR 1037.801. NPGA notes that the definition here applies to an auxiliary power unit, rather\nthan auxiliary power equipment, though the two terms are distinct without a difference in practice and as applied in\n40 CFR 1037.801.\n2\n\n<<>>\n\nSafety:\nA supplemental justification for a LOI to clarify that this rule only applies to auxiliary power equipment is\nto ensure safety. PHMSA generally, and the HMR regulations specifically, are designed to ensure the\nhighest level of safety. Should PHMSA or state enforcement authorities interpret this rule to apply to all\npower on a vehicle, a number of safety considerations will arise. In dark or low-light situations, all power\ncould be shut off to a hazardous materials delivery vehicle, which presents an elevated safety concern when\nseeing and avoiding the vehicle on the side of a road may prove challenging. Shutting off all power presents\na potential issue for the Occupational Safety and Health Administration, as it would increase the safety risk\nto the driver. Shutting off all power presents a potential issue for the National Transportation Safety Board,\nas it would increase the potential for vehicle collisions and incidents when all lights are shut off. Shutting\noff all power presents a potential issue for the Federal Motor Carrier Safety Administration (FMCSA), as\nit would not provide an equivalent level of safety to FMCSA’s own regulations. Finally, if all power is shut\ndown to the vehicle, it would detrimentally impact the functionality of the off-truck remote as well.\nGenerally speaking, providing the rule with the broad interpretation taken by a lone inspector in North\nCarolina would result in serious safety concerns for the workers, the public, and for a variety of government\nagencies.\nFurther, during a delivery, bobtails are oftentimes parked on roadways, or in areas with varying degrees of\ntraffic. As the truck is delivering, safety beacons are often deployed to warn others of the operation,\nprotecting the parked truck and its operator. In winter months, during inclement weather (blowing snow or\nrain), or after dark, these flashers are often a key piece of safety equipment. By cutting power to these lights,\nthe operator may be subject to potential tripping hazards, as well as low visibility in uneven, or slippery\nground conditions. Cutting all power on the truck removes this protection, and creates an unacceptable level\nof risk to the operator’s and the public’s safety.\nHistory:\nAn important consideration for the LOI is that for twenty-five years, PHMSA and state enforcement\nauthorities have interpreted this rule to only apply to power equipment, rather than all vehicle power,\nwithout discussion or debate. While a single inspector’s mistaken interpretation has encouraged this LOI,\nthe overwhelming pattern and practice of the application of this rule is without equivocation or doubt.10\nPHMSA’s intent is evident and clear through decades of focused enforcement of this rule, and clarifying\nthe intent and applicable enforcement would prevent future confusion or misinterpretation.\nFor PHMSA to take the position that the “off truck remote means to close the internal valve and shut off\nall motive and auxiliary power equipment”, as written in 49 CFR 173.315(n)(3) is inclusive of electrical\nenergy that has no bearing on the operation or function of the transfer system, would be a significant\ndeparture from RSPA records and the way the regulations have been interpreted for the last 25 years. This\nnew interpretation would require compliance with the Administrative Procedures Act (APA) because this\nchange does not rise to the level of an emergency nature and would be required to publish a notice of\nproposed rulemaking pursuant to the APA.\nConclusion\nNPGA and its members respectfully request PHMSA to issue a letter of interpretation stating that PHMSA’s\nuse of the terms “all motive and auxiliary power equipment” refers only to the equipment that is directly\nresponsible for operating the vehicles transfer system, as required to actuate or open the vehicles internal\n10 See also PHMSA-RSPA-97-2133-215 at 1-2, noting how an internal valve shut down process would provide\ncompliance with the regulations.\n3\n\n<<>>\n\nself-closing stop valve or operate the vehicles pump or product transfer equipment, and not all electrical\npower to the vehicle. Further, NPGA and its members respectfully request that PHMSA state that the intent\nof the regulation is to prevent uncontrolled or accidental discharge of hazardous materials. Thank you for\nyour consideration of these comments. Please contact NPGA if you have any questions or concerns.\nRespectfully Submitted,\n_________________________\nBenjamin Nussdorf\nVice President, Regulatory & Industry Affairs\nNational Propane Gas Association\n1140 Connecticut Ave., NW Suite 1075\nWashington, DC 20036\nbnussdorf@npga.org\n4\n\n<<>>\n\nBilling Code 491 0-60-P\n97oEc -5 PH 3: 19\nDEPARTMENT OF TRANSPORTATION\nDOCKET SECflOH\nRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION\n49 CFR Part 171\n49 CFR Part 171\n3 5 P A 4 7 - bz 133- ;z 22\n3 5 P A 4 7 - bz 133- ;z 22\n[Docket No. RSPA-97-2133 (HA4-225)]\n[Docket No. RSPA-97-2133 (HA4-225)]\nRIN 2137-AC97\nHazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service;\nResponse to Petitions for Reconsideration; Editorial Revisions; and Rules Clarification\nAGENCY: Research and Special Programs Administration (RSPA), DOT.\nACTION: Final rule; response to petitions for reconsideration; editorial revisions; and rules\nclarification.\nSUMMARY: On August 18,1997, RSPA published a final rule adopting certain safety standards\napplicable to cargo tank motor vehicles in liquefied compressed gas service. In response to petitions\nfor reconsideration filed by Farmland Industries, Inc. (Farmland), The Fertilizer Institute (TFI), and\nAmeriGas Propane, L.P. (AmeriGas), RSPA is revising a requirement concerning the daily pressure\ntesting of transfer hoses on these cargo tank motor vehicles, and the agency is revising 0 171 S(a)\nfor consistency with 0 178.337-1 l(a)(l)(i) by removing a hose rupture (k, incomplete separation)\nas a condition that causes the intemal self-closing stop valve to function. This action grants certain\npetitions for reconsideration of the final rule pertaining to effective and practical standards to assure\nthe integrity of transfer hoses used in unloading operations. Also, in this final rule, RSPA is granting\nthe request by Farmland and TFI to extend the expiration date of the final rule for four months, to\nJuly 1 , 1999. RSPA is denying the request by AmeriGas for an immediate stay of the provisions of\n3 171 S(a)(l)(iii) and the AmeriGas request for reconsideration of: (1) the provision in 0 171.5(c)\n.\n\n<<>>\n\nsetting forth an expiration date for the final rule; and (2) RSPA’s interpretation of the attendance\n._\nrequirements in 0 l77.&34(i) that a qualified person must always maintain an unobstructed view of\nthe cargo tank. Additionally, this action makes editorial revisions and clarifies certain provisions\nadopted in the final rule.\nDATES: This final rule is effective [Insert Date of publication in the Federal Register].\nFOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of Hazardous\nMaterials Technology, RSPA, Department of Transportation, 400 Seventh Street, S. W., Washington,\nDC 20590-0001, telephone (202) 366-4545, or Nancy Machado, Ofice of the Chief Counsel, RSPA,\nDepartment of Transportation, 400 Seventh Street, S.W., Washington, DC 20590-0001, telephone\n(202) 366-4400.\nSUPPLEMENTARY INFORMATION:\nI. Background\nOn August 18,1997, RSPA published a final rule under Docket No. RSPA-97-2133 (HM-\n225) [62 FR 440381. The final rule revised and extended requirements published in an interim final\nrule (IFR) on February 19,1997, concerning the operation of cargo tank motor vehicles (CTMVs)\nin certain liquefied compressed gas service. The fmal rule requires a specific marking on affected\nCTMVs and requires motor carriers to comply with additional operational controls intended to\ncompensate for the failure of passive emergency discharge control systems to function as required\nby the Hazardous Materials Regulations (HMR; 49 CFR Parts 17 1 - 1 80). The operational controls\nspecified in the final rule provide an alternative to compliance with 5 178.337-1 l(a)(l)(i) and are\nintended to ensure an acceptable level of safety while the industry and govemment continue to work\nto develop an emergency discharge control system that effectively stops the discharge of hazardous\n2\n\n<<>>\n\nmaterials from a cargo tank if any attached hose or piping is separated.\nPetitions for rewnsideration of the August 18, 1997 final rule were filed by The National\nPropane Gas Association (NPGA), Farmland Industries, Inc. (Farmland), The Fertilizer Institute\n(TFI) and jointly by Ferrellgas, L.P., Suburban Propane, L.P., AmeriGas Propane, L.P. (AmeriGas),\nAgway Petroleum Corporation, Cornerstone Propane Partners, L.P., and National Propane, L.P. On\nSeptember 26, 1997, Ferrellgas, L.P., Suburban Propane, L.P., Agway Petroleum Corporation,\nCornerstone Propane Partners, L.P., and National Propane, L.P. withdrew their names from the\njointly-filed petition for reconsideration. Petitioner AmeriGas, however, continues to seek relief\nthrough the September 17, 1997 petition for reconsideration. On October 2, 1 997, NPGA withdrew\nits petition for reconsideration. On November 5,1997, National Private Truck Council (NPTC) filed\na petition for reconsideration. Although the petition was filed by NPTC after the close of the petition\nperiod, and RSPA has not accepted the petition, all NPTC’s issues have been considered since NPTC\nraised issues identical to those raised by other petitioners.\nPetitioners Farmland and TFI seek reconsideration of two provisions of the August 18, 1997\nfinal rule. Specifically, they request reconsideration of the requirement in 0 171.5(a)( l)(i) that a\ntransfer hose be subjected to full transfer pressure before commencing the first transfer each day.\nThey also ask RSPA to reconsider the expiration date of the August 18,1997 final rule; they request\na four-month extension of the expiration date to July 1, 1999.\nAmeriGas seeks: (1) reconsideration and an immediate stay of the requirement in\n0 171.5(a)( l)(iii) that the qualified person unloading a CTMY promptly activate the internal self-\nclosing stop valve and promptly shut down all motive and auxiliary power in the event of an\nunintentional release of lading to the environment during transfer; (2) immediate withdrawal of\n3\n\n<<>>\n\nRSPA’s interpretation of its long-standing attendance requirements in $ 177.834(i) pending further\nrulemaking after notice and comment; (3) withdrawal of the expiration date in $ 171.5(c); (4)\ndeletion of the word “rupture” as it appears in $ 171.5(a); and (5) withdrawal of the requirement in\n$ 171.5(a)(l)(i) that the transfer hose be subjected to full transfer pressure before commencing the\nfirst transfer each day.\n11. Petitions Granted.\nA. Daily uressure testing of transfer hoses. In $ 171.5(a)(l)(i), RSPA required that a\ntransfer hose be subject to full transfer pressure before the first unloading of product each day. This\nprovision applied to all CTMVs operating under the terms of the temporary regulation specified in\n\\\n$ 171.5.\nPetitioners assert that, because most large CTMVs (“transports,” typically used for bulk plant\ndeliveries) do not have a separate back-to-tank product bypass line, energizing the pump when the\nreceiving tank‘s liquid shutoff valve is closed may damage the pump vanes, result in failure of the\nshaft seals and other components, and place high torsional loads on the power take-off (PTO) drive\nshaft.\nIn addition, petitioners state that no additional safety measures are needed for small CTMVs\n(“bobtails,” typically used for local deliveries) because they are generally equipped with a separate\nback-to-tank product bypass valve. Petitioners state that, in the process of preparing lines for\nproduct transfer from a small CTMV, the full length of transfer hose is charged to pump discharge\npressure, thereby providing an opportunity to prove the integrity of the transfer system prior to each\ndelivery.\nRecognizing the merit of the petitioners’ comments regarding the transfer hose pressure\n4\n\n<<>>\n\nstandard adopted in the final rule, RSPA published an advisory guidance that communicated the\nagency’s agreement w&th the petitioners’ claim that some cargo tank pumping systems are not\ncapable of safely pumping against a closed product valve without being damaged\n(62 FR 49171; September 19, 1997) . Therefore, 3 171.5(a)(l)(i) is revised to allow an operator to\ndetermine the leakproofhess of a discharge system (including hose) by requiring that the pressure\nin the discharge system reach at least equilibrium with the pressure inside the cargo tank prior to\ntransfer. After the operator verifies leakproofhess of the discharge system, delivery may commence.\nRSPA is also amending 3 171.5(a)( l)(i) by removing the wording “and equipment” from\nthe third sentence to clarify that only the piping, hose and hose fittings must be tested daily. There\nis no requirement to test the entire cargo tank on a daily basis.\nB. Hose separation versus hose rupture. Petitioner AmeriGas notes RSPA’s use of the\nword “rupture[d]” in 3 171.5(a) with respect to comparable requirements in 3 178.337-1 l(a)(l)(i)\nconcerning operation of the internal self-closing stop valve. The petitioner states that the word\n“rupture[d]” is more commonly used to denote a “leak or partial failure” rather than an actual\nseparation, thus creating an undesirable potential for confusion. Therefore, AmeriGas requests that\nthe word “rupture[d]” be stricken from the regulatory language.\nRSPA agrees that the word “ruptured” could be construed as adding new meaning to\nrequirements pertaining to the emergency operation of the internal self-closing stop valve that was\nnot intended in the development of the final rule. Therefore, 3 171.5(a) is amended by removing the\nwording “ruptured or ” to make this provision consistent with requirements in 3 178.337-1 l(a)( l)(i).\nfC). March 1.1999 expiration date of the temporary final rule. Petitioners TFI and Farmland\nrequest that RSPA reconsider the March 1 , 1999 expiration date of 0 171.5. The petitioners request\n5\n\n<<>>\n\na four-month extension of the alternative requirements in tj 171.5 -- until July 1, 1999 -- to avoid\nexpiration of the requixments at the beginning of the fertilizer industry’s peak delivery season.\nRSPA is granting a request by TFI and Farmland to extend the expiration date until July 1,\n1999. This decision is based on RSPA’s understanding that industry will continue to make good\nfaith efforts in developing an emergency discharge control system that offers an equal or higher level\nof safety as that in longstanding provisions in 0 178.337-1 l(a)(l)(i).\n111. Petitions Denied.\nA. Prompt activation of the internal self-closinp stop valve. In its petition, AmeriGas\ncontends that it is impossible to achieve immediate full compliance with the requirement in\n0 171.5(a)(l)(iii) that a qualified person unloading a small CTMV promptly activate the intemal self-\nclosing stop valve and promptly shut down all motive and auxiliary power equipment if there is an\nunintentional release of lading to the environment during transfer. AmeriGas claims this rule\nconstitutes a new operator attendance requirement that can only be satisfied by using remote-\ncontrolled equipment that is not currently in service on more than an experimental basis and that\nsuch equipment cannot be put into service in less than a matter of months.\nIn the February 1997 emergency interim final rule (IFR), RSPA first adopted additional\nrequirements for the person who attends the unloading of a CTMV to be within arm’s reach of a\nmeans for closure (emergency shut-down device) of the internal self-closing stop valve or other\ndevice that will immediately stop the discharge of product from the cargo tank [62 FR 7643,\nFebruary 19, 19971. Use of an “electro-mechanical” device as a means of closure was discussed in\nthat rule. Based on comments to the IFR, RSPA revised 0 171.5(a)(l)(iii)(C), in the August final\nrule, to set forth three ways to achieve prompt stoppage of lading discharge from the cargo tank by:\n6\n\n<<>>\n\n(1) complying with the requirements in $ 178.337-1 l(a)(l)(i); (2) using a qualified person positioned\nwithin arm’s reach of-the mechanical means of closure of the internal self-closing stop valve\nthroughout the unloading operation, except during the short period necessary to engage or disengage\nthe motor vehicle PTO or other mechanical, electrical, or hydraulic means used to energize the pump\nand other components of a cargo tank’s discharge system; or (3) using a remote-controlled system\nthat is capable of stopping the transfer of lading by use of a transmitter carried by a qualified person\nunloading the cargo tank.\nRSPA notes that the NPGA special task force, organized in part to develop plans to provide\nfor continued safe operation of existing propane cargo tanks, concentrated much of its efforts on\ndevelopment of remote-controlled devices that may be activated by the person attending an\nunloading operation [comments of Mr. McHenry, NPGA, June 23, 1997 public meeting]. A\nrepresentative of the NPGA special task force reported progress on the development of remote-\ncontrolled devices at a June 23, 1997 public meeting [comments of Mr. McHenry, NPGA].\nPetitioner AmeriGas also provided a report on its progress in developing an effective, low-cost\nremote-controlled system using radio fkequency technology [comments of Mr. McEnroe, AmenGas,\nJune 23, 1997 public meeting transcript, pages 5,45,56, and 571. AmeriGas provided RSPA with\nan update on its progress in a November 13, 1997 meeting. The NPGA’s July 24, 1997 petition for\nrulemaking (P-1346) calls for RSPA to adopt a new provision in 3 178.337-1 l(a)(l)(iii) for a variety\nof systems that are capable of closing the internal liquid discharge valve by remote means.\nThe public record contains favorable accounts by several propane dealers who have installed\nremote-controlled systems on their fleets of CTMVs [comments of Mr. Schuler, REMTRON, June\n23, 1997 public meeting transcript, pages 59 and 60; comments of Mr. Stillwaggon, H.R. Weaver\n7\n\n<<>>\n\nCo.; and comments of Mi. McEnroe, AmeriGas, September 30, 1997 public meeting transcript,\npages 42 and 6 1, respestively].\nIndustry representatives have stated that they have had good results with using radio-\nfrequency, remote-controlled systems [comments of Mr. McEnroe, AmeriGas, public meeting\ntranscript, June 23, 1997, page 46; Dr. Coady, Hick’s Gas, June 23, 1997 public meeting transcript,\npages 92 and 1021. A representative of Hicks Gas, one of the larger independent marketers of\npropane, stated that his company has been developing and refining remote-control shutdown systems\non some of its trucks for the past three years [comments of Dr. Coady, Hick’s Gas, June 23, 1997\npublic meeting transcript, page 921.\nD&g two public meetings (June 23,1997 and September 30,1997) industry representatives\npresented information on radio frequency, remote-controlled systems, some with basic features and\nothers with more sophisticated applications, that can be used on most CTMVs. Additionally, they\nrepresented that the installation instructions for these systems are simple enough that a fleet\nmechanic who has a working knowledge of a vehicle’s air and electrical systems generally has the\nexperience and tools necessary to install and proof-test a system within a period of two or three\nhours.\nThe advantage of a remote-controlled device has been demonstrated during an incident\ninvolving a propane release on November 3, 1997 near Udina, Illinois. The driver, using a remote-\ncontrolled device, promptly activated closure of the intemal self-closing stop valve without ignition\nof the propane.\nRSPA does not agree that operators of CTMVs have no practical means of compliance. The\npublic record contains information that some operators began installing remote-controlled systems\n8\n\n<<>>\n\nshortly after issuance of the February 19,1997 interim final rule. In addition, the Federal Highway\nAdministration’s (FHWA) compliance policy emphasizes increased awareness about the rule and\nits safety benefits, as opposed to immediate enforcement. If a company shows good faith efforts\nto comply with the provisions of 3 171.5, FHWA’s policy is to not pursue civil penalty enforcement\nactions.\nTherefore, based on the above information, this part of the AmeriGas petition for\nreconsideration of the final rule is denied.\nRSPA believes there is a need to clarify that while the first sentence of 171.5(a)(l)(iii)(C)\nallows use of a remote-controlled system to promptly activate the internal self-closing stop valve in\n\\\nthe event of an unintentional discharge, the second sentence provides limited relief from the\nattendance requirements in 3 177.834(i)(3). Specifically, 3 177.834(i)(3) requires a qualified person\nwho is attending the unloading of a cargo tank to be awake, have an unobstructed view of the cargo\ntank, and be within 25 feet of the cargo tank at all times during unloading. Therefore, the second\nsentence in 3 171 .S(a)(l)(iii)(C) is revised to clarify that where a remote-controlled system is used,\nthe attendance requirements in 177.834(i)(3) are satisfied when the qualified person attending is\nawake, is carrying a transmitter that can activate the closure of the internal self-closing stop valve,\nremains within the operating range of the transmitter, and maintains an unobstructed view of the\ncargo tank when the internal self-closing stop valve is open.\nAlso, 3 17 1.5(a)( l)(iii)(B) is revised to clarify that a qualified person must be positioned\nwithin arm’s reach of a mechanical means of closure for the internal self-closing stop valve gr&\nwhen this valve is open, except for the short duration necessary to engage or disengage the motor\nvehicle PTO or other mechanical, electrical or hydraulic means used to energize the pump and other\n9\n\n<<>>\n\ncomponents of a cargo tank motor vehicle’s discharge system. All of these functions occur at or\nimmediately adjacent to the cargo tank in proximity to a means for closure of the internal self-\nclosing stop valve.\nB. RSPA has not developed a “new interpretation” of its long-standing attendance\nrequirement in\n177.834(i). In its petition, AmeriGas states that, in the August 18, 1997 final rule,\nRSPA announced a new interpretation of the long-standing attendance requirements set forth at\nQ 177.834(i). AmeriGas contends that this interpretation should be withdrawn because it: (1) is\ninconsistent with the regulatory language; (2) was announced without notice or opportunity to\ncomment, in violation of the Administrative Procedure Act (MA) (see 5 U.S.C. 553); and (3) is\ninconsistent with normal industry practice that has been “accepted for decades without question.”\nAmeriGas’s arguments are invalid because RSPA’s position with regard to the meaning of\nQ 177.834(i) is consistent with the regulatory history and plain language of that requirement.\nFurthermore, the public was given notice of the rulemaking that gave rise to the attendance\nrequirements and an opportunity to comment. Indeed, comments to that rulemaking reflect that\nindustry understood that restrictions on the person attending the unloading of hazardous materials\nfrom CTMVs were being proposed. Additional notice and an opportunity to comment are, therefore,\nnot required under the APA. Finally, there is no validity to the assertion that, for decades, the\nDepartment has accepted widespread industry non-compliance with the attendance requirements.\nFor these reasons, AmeriGas’s petition for reconsideration of RSPA’s position regarding the Q\n177.834(i) attendance requirements is denied.\n1. RSPA’s position is consistent with the regulatory history and plain language of the\nattendance requirements in 6 177.834Ci). AmeriGas argues in favor of an industry interpretation\n10\n\n<<>>\n\nthat compliance with 0 177.834(i) can be achieved by having a single operator remain in proximity\nto, and maintain an unobstructed view of, any part of the delivery hose.\nThe position that RSPA has taken with regard to the meaning of the attendance requirements\nin 49 CFR 177.834(i) is not only consistent with the plain language of the regulation but the\nregulatory history of the regulation as well. Section 177.834(i) states:\n(2) Unloading. A motor carrier who transports hazardous materials by a cargo tank must\nensure that the cargo tank is attended by a qualified person at all times during unloading. . . .\n(3) A person \"attends\" the loading or unloading of a cargo tank if, throughout the process,\nhe is awake, has an unobstructed view of the cargo tank, and is within 7.62 meters (25 feet) of the\ncargo tank.\n..\n( 5 ) A delivery hose, when attached to the cargo tank, is considered a part of the vehicle\n(Emphasis added.)\nRSPA's position consistently has been that the plain language of 0 177.834(i) requires an\nattendant to maintain an unobstructed view of the cargo tank and be within 25 feet of the cargo tank\nduring the unloading process.' Contrary to AmeriGas's assertion, the term \"cargo tank\" means the\ncargo tank itself and does not mean the hose or CTMV. The language of 9 177.834(i)(5) plainly\nstates that the hose is part of the vehicle not the cargo tank.\nRSPA's position is supported by National Fire Protection Association publication \"Standard for the Storage\nand Handling of Liquefied Compressed Gases\" (NFPA 581, reported as adopted by 49 of 50 states. Section 4-2.3.3\nrequires, during unloading into storage containers, that \"the shutoff valves on both the truck and the container are readily\naccessible.\"\n11\n\n<<>>\n\nAmeriGas contends that there is support for industry's interpretation of the tj 177.834(i)(3)\nrequirements in the regulatory history of these requirements. Specifically, AmeriGas relies on\nlanguage that appeared in a republication of 49 CFR Parts 71-90 by the Interstate Commerce\nCommission (ICC) on December 29, 1964 (29 FR 18652). (The ICC regulated hazardous materials\ntransportation by highway and rail prior to 1967, the year the Department of Transportation (DOT)\nwas established). The regulatory text AmeriGas relies on reads, 'Vnder no circumstances shall a\ntank motor vehicle be left unattended during the loading or unloading process. For the purpose of\nthis part, the delivery hose, when attached to the motor vehicle, shall be deemed a part thereof.\"\n(December 29, 1964; 29 FR 18801). RSPA believes this regulatory language makes it clear that a\nCTMV operator must attend the CTMV and any delivery hose attached to the motor vehicle during\nloading and unloading. The intent of this provision was to ensure that the operator took\nresponsibility for the entire delivery system which, for purposes of Part 77, included not only the\nmotor vehicle itself but also the delivery hose when attached to the motor vehicle. However, the\n1964 language in 3 77.834(i) was not specific as to what actions constituted \"attendance.\"\nRealizing that the word \"attendance\" was vague and that there was industry confusion\nregarding what was required under the attendance regulation, the Hazardous Materials Regulations\nBoard (the Board), the predecessor to RSPA's Office of the Associate Administrator for Hazardous\nMaterials Safety, initiated a rulemaking in Docket HM-110 to clarify the attendance requirement.\nLanguage in the notice of proposed rulemaking (NPRM) and the final rule in Docket HM- 1 10 serves\nas the basis for RSPA's interpretation of the current attendance requirement. Specifically, in the\npreamble to the HM- 1 10 NPRM, the Board stated:\nThe Board has found that several dangerous incidents have occurred during the\n12\n\n<<>>\n\nloading or unloading of tank motor vehicles which could have been avoided, if there\nhad been someone near the cargo tank to take corrective action or precautionary\naction. The Board feels that there may be some confusion as to the intent of the term\n“attendancell as it is used in § 177.834(i). (Emphasis added).\n~\n38 Fed. Reg. 22901, August 27,1973.\nBased on this concern, the Board proposed to revise the regulation to include a requirement\nthat an operator remain within 25 feet of the cargo tank motor vehicle. The Board also proposed to\ndelete the limiting language “for the purpose of this part” fiom the hose provision of the attendance\nrequirements, thereby making the delivery hose part of the tank motor vehicle not only for loading\nand unloading purposes, but for other regulatory purposes as well (e.g., incident reporting).\nSpecifically, the Board proposed to revise the attendance requirements in 9 177.834(i) to state:\n(1) A tank motor vehicle is attended when the person in charge of the vehicle is\nawake and n","truncated":true,"body_characters":371893}