# National Propane Gas Association — Hazardous Materials Safety Interpretation - **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:** Not available - **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:** <<>> 1200 New Jersey Avenue, SE Washington, DC 20590 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration August 12, 2025 Benjamin A.F. Nussdorf General Counsel/Vice President, Regulatory & Industry Affairs National Propane Gas Association 1140 Connecticut Avenue, NW Suite 1075 Washington, DC 20036 Reference No. 24-0112 Dear Mr. Nussdorf: This letter is in response to your November 18, 2024 email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to emergency discharge control equipment for liquefied compressed gas in cargo tank motor vehicles (CTMVs). Regarding metered service, it is your understanding that the phrase “shut off all motive and auxiliary power equipment” located in § 173.315(n)(3) of the HMR refers only to shutting down the equipment used for product transfer to prevent uncontrolled or accidental discharge of hazardous material and the vehicle engine. Specifically, you ask whether this language in § 173.315(n)(3) is meant to only shut off product transfer equipment and the vehicle’s engine but not to shut off all electrical power on the vehicle. Your understanding is correct. As provided by § 173.315(n)(3), the phrase “all motive and auxiliary power equipment” refers only to the vehicle’s engine and the equipment that is directly responsible for operating the vehicles product transfer system—not all electrical power to the vehicle. The intent of the regulation is to close the internal self-closing stop valve and shut off all motive and auxiliary power equipment upon activation to prevent uncontrolled or accidental discharge of hazardous materials and eliminate potential sources of ignition. <<>> I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Dirk DerKinderen Chief, Standards Development Branch Standards and Rulemaking Division <<>> Horne 24-0112 From: Patrick, Eamonn (PHMSA) To: Dodd, Alice (PHMSA) Cc: Andrews, Steven (PHMSA); Wolcott, Alexander (PHMSA) Subject: FW: NPGA Request: Letter of Interpretation for Remote Power Shut Off Regulations Date: Monday, November 18, 2024 1:02:42 PM Attachments: image001.png PHMSA-RSPA-1997-2133-0122_content.pdf PHMSA-RSPA-1997-2133-0215_attachment_1 RSPA Guidance.pdf PHMSA-RSPA-2133-168 - Remtron.pdf RSPA Attachment A.pdf RSPA Attachment B.pdf RSPA Attachment C.pdf NPGA Request for Letter of Interpretation - Remote Power Shut Off.pdf Good afternoon Alice, Please check this in as a LOI. The request is the attachment titled “NPGA Request for Letter of Interpretation – Remote Power Shut Off.” The other attachments are reference materials to provide context and information for the request. The person assigned can reach out to Steven and/or me for further background on this issue. Thanks! -Eamonn From: Benjamin Nussdorf Sent: Monday, November 18, 2024 12:57 PM To: Patrick, Eamonn (PHMSA) ; Andrews, Steven (PHMSA) ; Wolcott, Alexander (PHMSA) Subject: NPGA Request: Letter of Interpretation for Remote Power Shut Off Regulations CAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or open attachments unless you recognize the sender and know the content is safe. Dear Mr. Patrick, Mr. Andrews, and Mr. Wolcott: Thank you for your engagement with NPGA and its members regarding the Remote Power Shut Off Regulations. Attached, please find our request for a letter of interpretation and supporting materials. Thank you for your consideration and review. Sincerely, Benjamin Nussdorf Benjamin A.F. Nussdorf General Counsel/Vice President, Regulatory & Industry Affairs NATIONAL PROPANE GAS ASSOCIATION 1140 Connecticut Avenue, NW <<>> Suite 1075 Washington, DC 20036 USA 202 355 1321 PHONE 202 365 2638 CELL 202 466 7205 FAX bnussdorf@npga.org www.npga.org <<>> November 18, 2024 Eamonn Patrick Steven Andrews Alexander Walcott Pipeline and Hazardous Materials Safety Administration (PHMSA) United States Department of Transportation 1200 New Jersey Ave. SE Washington, DC 20590 Re: Remote Power Shut Off Discussions Dear Mr. Patrick, Mr. Walcott, and Mr. Andrews: The National Propane Gas Association (NPGA) respectfully submits this request in response to our meetings of July 29th and September 30th, 2024. In those meetings, which included NPGA, PHMSA, the Federal Motor Carrier Safety Administration (FMCSA), the State of North Carolina, BASE Engineering, and Mississippi Tank, PHMSA requested information on the preamble of the prior rulemaking, analysis from BASE Engineering on system operations, and information from Mississippi Tank on the prior negotiated rulemaking. The aim of this request is to provide justification for a letter of interpretation (LOI) from the Research and Special Programs Administration (RSPA) which will clarify and refine the understanding of the remote shut off regulations in HMR-225 and what they intend to encompass. NPGA is the national trade association of the propane industry with a membership of about 2,300 companies, and 36 state and regional associations that represent members in all 50 states. Membership in NPGA includes retail marketers of propane gas who deliver the fuel to the end user, propane producers, transporters and wholesalers, and manufacturers and distributors of equipment, containers, and appliances. Propane gas fuels millions of installations nationwide for home and commercial heating and cooking, in agriculture, industrial processing, and as a clean air alternative engine fuel for both over-the-road vehicles and industrial lift trucks. Roughly 75% of NPGA’s members have fewer than 100 employees, and are considered small businesses. Preamble: NPGA staff has evaluated the documents relevant to the remote shut off section of the Hazardous Materials Regulations (HMR) and offers the following for your consideration. Principally, the regulatory evaluation established that use of a radio frequency transmitter communication with receiver equipment on board the vehicle capable of closing the stop valve met the requirements of “immediately activate the internal self- closing stop valve to shut down all motive and auxiliary power equipment,” in order to prevent unauthorized or uncontrolled release (See RSPA Attachment A at Page 12). PHMSA noted in the Federal Register that the elimination of unauthorized or uncontrolled discharge by actuating the remote means of automatic closure of the internal self-closing stop valve, rather than the deenergizing entire vehicle, was the primary objective.1 NPGA has been consistent in prior rulemakings to cover this problem. Included in its engagement are initial comments on the HMR (See RSPA Attachment B). NPGA, and the propane industry as a whole, have never advocated or supported the contention that the entire vehicle lose power because, as noted on the July 29th call, such an action would represent an unacceptable safety risk to the operator and the public. 1 See e.g. PHMSA-RSPA-97-2133-0122 at 8-10, 13, noting the intent to disengage power to the discharge system. <<>> Further, PHMSA’s own regulatory actions in this field have focused on the need to stop the flow of product remotely in the sake of safety, rather than the shutdown of the entire vehicle. (See RSPA Attachment C, at Page 9-10). In that document, PHMSA stresses the focus is the ability of the operator 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. PHMSA did not stress the need to shut down all power to the vehicle. In all situations and in all potential explanations, RSPA rules with respect to remote shut down have focused on shutting down the components and the power to the discharge system, rather than the vehicle itself. In PHMSA’s documents in this docket, RSPA 97-2133 (HM-225), PHMSA noted the need to “ensure an acceptable level of safety for delivery of liquefied compressed gases.”2 These regulations evidence PHMSA’s intent to regulate emergency discharge controls,3 rather than regulate all power to the vehicle. PHMSA’s questions and documents on this issue focus principally on discharge, rather than eliminating all power to the vehicle.4 PHMSA notes elsewhere that the rules have been essentially unchanged since 1941, focusing on controls for excess flow valves and internal self-closing stop valves; while regulations in the 1990s provided for secondary remote controls and for fusible links, allowing the internal valves to close automatically in the case of a cargo tank being involved in a fire.56 Without question, PHMSA has intended to have the remote shut off portion of the HMR apply to valve and discharge equipment since their inception, rather than apply to the entire vehicle. Auxiliary Power Equipment: The intent of the regulation is clear through examination of the HMR as a whole. “A cargo tank motor vehicle must have an off-truck remote means to close the internal self-closing stop valve and shut off all motive and auxiliary power equipment upon activation by a qualified person…”7 The aim of this regulation is to stop the flow of product in an emergency situation, not to shut down all electric power to the vehicle, which would result in an unacceptable and unprecedented safety concern to the driver and to public safety. Other parts of the same regulation specifically focus on the need to stop the flow of product in an emergency situation.8 While the operative portion of the regulation is not precisely worded, taken as a whole, the remote shut off portion of the HMR’s goal is to stop the flow of product by means of a remote shut down to the product’s valves and mechanical power to the pump. Further, while not defined in the hazardous materials section, an “auxiliary power unit” is defined elsewhere in the regulations. It is possible that the omission of defining auxiliary power equipment in this section is simply an oversight, but the regulations taken as a whole do provide a definition of auxiliary power unit. 9 NPGA requests that PHMSA clearly state in LOI that these available definitions of auxiliary power unit apply to the remote power shut off regulations, and that auxiliary power unit and auxiliary power equipment have the same definition in the HMR. 2 62 Fed. Reg. 44059 (Aug. 18, 1997). 3 Id. 4 Id. at 44060. 5 62 Fed. Reg. 44038 (Aug. 18, 1997). 6 See also PHMSA-RSPA-97-2133-168 at 2-4, 6, 13, noting REMTRON’s presentation identifying the immediate closure of an emergency shut down device by way of closing the internal valve and stopping the discharge process through disengagement of the pump inclusive of engine shut down. 7 49 CFR 173.315(n)(1). 8 49 CFR 173.315(n)(2). 9 49 CFR 535.4; 40 CFR 1037.801. NPGA notes that the definition here applies to an auxiliary power unit, rather than auxiliary power equipment, though the two terms are distinct without a difference in practice and as applied in 40 CFR 1037.801. 2 <<>> Safety: A supplemental justification for a LOI to clarify that this rule only applies to auxiliary power equipment is to ensure safety. PHMSA generally, and the HMR regulations specifically, are designed to ensure the highest level of safety. Should PHMSA or state enforcement authorities interpret this rule to apply to all power on a vehicle, a number of safety considerations will arise. In dark or low-light situations, all power could be shut off to a hazardous materials delivery vehicle, which presents an elevated safety concern when seeing and avoiding the vehicle on the side of a road may prove challenging. Shutting off all power presents a potential issue for the Occupational Safety and Health Administration, as it would increase the safety risk to the driver. Shutting off all power presents a potential issue for the National Transportation Safety Board, as it would increase the potential for vehicle collisions and incidents when all lights are shut off. Shutting off all power presents a potential issue for the Federal Motor Carrier Safety Administration (FMCSA), as it would not provide an equivalent level of safety to FMCSA’s own regulations. Finally, if all power is shut down to the vehicle, it would detrimentally impact the functionality of the off-truck remote as well. Generally speaking, providing the rule with the broad interpretation taken by a lone inspector in North Carolina would result in serious safety concerns for the workers, the public, and for a variety of government agencies. Further, during a delivery, bobtails are oftentimes parked on roadways, or in areas with varying degrees of traffic. As the truck is delivering, safety beacons are often deployed to warn others of the operation, protecting the parked truck and its operator. In winter months, during inclement weather (blowing snow or rain), or after dark, these flashers are often a key piece of safety equipment. By cutting power to these lights, the operator may be subject to potential tripping hazards, as well as low visibility in uneven, or slippery ground conditions. Cutting all power on the truck removes this protection, and creates an unacceptable level of risk to the operator’s and the public’s safety. History: An important consideration for the LOI is that for twenty-five years, PHMSA and state enforcement authorities have interpreted this rule to only apply to power equipment, rather than all vehicle power, without discussion or debate. While a single inspector’s mistaken interpretation has encouraged this LOI, the overwhelming pattern and practice of the application of this rule is without equivocation or doubt.10 PHMSA’s intent is evident and clear through decades of focused enforcement of this rule, and clarifying the intent and applicable enforcement would prevent future confusion or misinterpretation. For PHMSA to take the position that the “off truck remote means to close the internal valve and shut off all motive and auxiliary power equipment”, as written in 49 CFR 173.315(n)(3) is inclusive of electrical energy that has no bearing on the operation or function of the transfer system, would be a significant departure from RSPA records and the way the regulations have been interpreted for the last 25 years. This new interpretation would require compliance with the Administrative Procedures Act (APA) because this change does not rise to the level of an emergency nature and would be required to publish a notice of proposed rulemaking pursuant to the APA. Conclusion NPGA and its members respectfully request PHMSA to issue a letter of interpretation stating that PHMSA’s use of the terms “all motive and auxiliary power equipment” refers only to the equipment that is directly responsible for operating the vehicles transfer system, as required to actuate or open the vehicles internal 10 See also PHMSA-RSPA-97-2133-215 at 1-2, noting how an internal valve shut down process would provide compliance with the regulations. 3 <<>> self-closing stop valve or operate the vehicles pump or product transfer equipment, and not all electrical power to the vehicle. Further, NPGA and its members respectfully request that PHMSA state that the intent of the regulation is to prevent uncontrolled or accidental discharge of hazardous materials. Thank you for your consideration of these comments. Please contact NPGA if you have any questions or concerns. Respectfully Submitted, _________________________ Benjamin Nussdorf Vice President, Regulatory & Industry Affairs National Propane Gas Association 1140 Connecticut Ave., NW Suite 1075 Washington, DC 20036 bnussdorf@npga.org 4 <<>> Billing Code 491 0-60-P 97oEc -5 PH 3: 19 DEPARTMENT OF TRANSPORTATION DOCKET SECflOH RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION 49 CFR Part 171 49 CFR Part 171 3 5 P A 4 7 - bz 133- ;z 22 3 5 P A 4 7 - bz 133- ;z 22 [Docket No. RSPA-97-2133 (HA4-225)] [Docket No. RSPA-97-2133 (HA4-225)] RIN 2137-AC97 Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Response to Petitions for Reconsideration; Editorial Revisions; and Rules Clarification AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule; response to petitions for reconsideration; editorial revisions; and rules clarification. SUMMARY: On August 18,1997, RSPA published a final rule adopting certain safety standards applicable to cargo tank motor vehicles in liquefied compressed gas service. In response to petitions for reconsideration filed by Farmland Industries, Inc. (Farmland), The Fertilizer Institute (TFI), and AmeriGas Propane, L.P. (AmeriGas), RSPA is revising a requirement concerning the daily pressure testing of transfer hoses on these cargo tank motor vehicles, and the agency is revising 0 171 S(a) for consistency with 0 178.337-1 l(a)(l)(i) by removing a hose rupture (k, incomplete separation) as a condition that causes the intemal 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 date of the final rule for four months, to July 1 , 1999. RSPA is denying the request by AmeriGas for an immediate stay of the provisions of 3 171 S(a)(l)(iii) and the AmeriGas request for reconsideration of: (1) the provision in 0 171.5(c) . <<>> setting forth an expiration date for the final rule; and (2) RSPA’s interpretation of the attendance ._ requirements in 0 l77.&34(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 [Insert Date of publication in the Federal Register]. 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, Ofice 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 440381. 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 fmal 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 17 1 - 1 80). The operational controls specified in the final rule provide an alternative to compliance with 5 178.337-1 l(a)(l)(i) and are intended to ensure an acceptable level of safety while the industry and govemment continue to work to develop an emergency discharge control system that effectively stops the discharge of hazardous 2 <<>> materials from a cargo tank if any attached hose or piping is separated. Petitions for rewnsideration 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, 1 997, 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 0 171.5(a)( l)(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; 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 0 171.5(a)( l)(iii) that the qualified person unloading a CTMY 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 3 <<>> RSPA’s interpretation of its long-standing attendance requirements in $ 177.834(i) pending further rulemaking after notice and comment; (3) withdrawal of the expiration date in $ 171.5(c); (4) deletion of the word “rupture” as it appears in $ 171.5(a); and (5) withdrawal of the requirement in $ 171.5(a)(l)(i) that the transfer hose be subjected to full transfer pressure before commencing the first transfer each day. 11. Petitions Granted. A. Daily uressure testing of transfer hoses. In $ 171.5(a)(l)(i), RSPA required that a transfer hose be subject to full transfer pressure before the first unloading of product each day. This provision applied to all CTMVs operating under the terms of the temporary regulation specified in \ $ 171.5. Petitioners assert that, because most large CTMVs (“transports,” typically used for bulk plant deliveries) do not have a separate back-to-tank product bypass line, energizing the pump when the receiving tank‘s liquid shutoff valve is closed may damage the pump vanes, result in failure of the shaft seals and other components, and place high torsional loads on the power take-off (PTO) drive shaft. In addition, petitioners state that no additional safety measures are needed for small CTMVs (“bobtails,” typically used for local deliveries) because they are generally equipped with a separate back-to-tank product bypass valve. Petitioners state that, in the process of preparing lines for product transfer from a small CTMV, the full length of transfer hose is charged to pump discharge 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 4 <<>> standard adopted in the final rule, RSPA published an advisory guidance that communicated the agency’s agreement w&th 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, 3 171.5(a)(l)(i) is revised to allow an operator to determine the leakproofhess 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 leakproofhess of the discharge system, delivery may commence. RSPA is also amending 3 171.5(a)( l)(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 3 171.5(a) with respect to comparable requirements in 3 178.337-1 l(a)(l)(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, 3 171.5(a) is amended by removing the wording “ruptured or ” to make this provision consistent with requirements in 3 178.337-1 l(a)( l)(i). fC). 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 0 171.5. The petitioners request 5 <<>> a four-month extension of the alternative requirements in tj 171.5 -- until July 1, 1999 -- to avoid expiration of the requixments 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 0 178.337-1 l(a)(l)(i). 111. Petitions Denied. A. Prompt activation of the internal self-closinp stop valve. In its petition, AmeriGas contends that it is impossible to achieve immediate full compliance with the requirement in 0 171.5(a)(l)(iii) that a qualified person unloading a small CTMV promptly activate the intemal 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, 19971. Use of an “electro-mechanical” device as a means of closure was discussed in that rule. Based on comments to the IFR, RSPA revised 0 171.5(a)(l)(iii)(C), in the August final rule, to set forth three ways to achieve prompt stoppage of lading discharge from the cargo tank by: 6 <<>> (1) complying with the requirements in $ 178.337-1 l(a)(l)(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 fkequency technology [comments of Mr. McEnroe, AmenGas, June 23, 1997 public meeting transcript, pages 5,45,56, and 571. 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 3 178.337-1 l(a)(l)(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 7 <<>> Co.; and comments of Mi. McEnroe, AmeriGas, September 30, 1997 public meeting transcript, pages 42 and 6 1, respestively]. 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 1021. 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 921. D&g 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 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 intemal 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 8 <<>> 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 3 171.5, FHWA’s policy is to not pursue civil penalty enforcement actions. Therefore, based on the above information, this part of the AmeriGas petition for reconsideration of the final rule is denied. RSPA believes there is a need to clarify that while the first sentence of 171.5(a)(l)(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 3 177.834(i)(3). Specifically, 3 177.834(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 3 171 .S(a)(l)(iii)(C) is revised to clarify that where a remote-controlled system is used, the attendance requirements in 177.834(i)(3) are satisfied when the qualified person attending is awake, is carrying a transmitter that can activate the closure of the internal self-closing stop valve, remains within the operating range of the transmitter, and maintains an unobstructed view of the cargo tank when the internal self-closing stop valve is open. Also, 3 17 1.5(a)( l)(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 gr& 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 9 <<>> components of a cargo tank motor vehicle’s discharge system. All of these functions occur at or immediately adjacent to the cargo tank in proximity to a means for closure of the internal self- closing stop valve. B. RSPA has not developed a “new interpretation” of its long-standing attendance requirement in 177.834(i). In its petition, AmeriGas states that, in the August 18, 1997 final rule, RSPA announced a new interpretation of the long-standing attendance requirements set forth at Q 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 (MA) (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 Q 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 CTMVs 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 Q 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 6 177.834Ci). AmeriGas argues in favor of an industry interpretation 10 <<>> that compliance with 0 177.834(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 0 177.834(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.' 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 9 177.834(i)(5) plainly states that the hose is part of the vehicle not the cargo tank. RSPA's position is supported by National Fire Protection Association publication "Standard for the Storage and Handling of Liquefied Compressed Gases" (NFPA 581, 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." 11 <<>> AmeriGas contends that there is support for industry's interpretation of the tj 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, 'Vnder 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 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 3 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- 1 10 serves as the basis for RSPA's interpretation of the current attendance requirement. Specifically, in the preamble to the HM- 1 10 NPRM, the Board stated: The Board has found that several dangerous incidents have occurred during the 12 <<>> 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 “attendancell as it is used in § 177.834(i). (Emphasis added). ~ 38 Fed. Reg. 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” fiom 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 9 177.834(i) to state: (1) A tank motor vehicle is attended when the person in charge of the vehicle is awake and n - **truncated:** true - **body characters:** 371893