[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51238-51241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24711]


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


DEPARTMENT OF TRANSPORTATION
49 CFR Part 172 and 173

[Docket HM-220A; Amdt Nos. 172-150 and 173-258]
RIN 2137-AC59


Periodic Inspection and Testing of Cylinders; Response to 
Petitions for Reconsideration, Clarification and Editorial Correction

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

ACTION: Final rule; response to petitions for reconsideration, 
clarification and editorial correction.

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

SUMMARY: On May 28, 1996, RSPA published a final rule under Docket HM-
220A which amended the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171-180) pertaining to the maintenance and requalification of DOT 
specification and exemption cylinders used for the transport of 
compressed gases in commerce. The intent of these changes was to 
enhance public safety by clarifying the regulations for those persons 
who perform periodic inspection and testing of these cylinders. This 
final rule responds to petitions for reconsideration, further clarifies 
the regulations for cylinder retest, and makes minor editorial 
corrections.

EFFECTIVE DATE: The effective date of these amendments is October 1, 
1996.

FOR FURTHER INFORMATION CONTACT: Theresa Gwynn, telephone (202) 366-
4488, Office of Hazardous Materials Standards, Research and Special 
Programs Administration, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: On May 28, 1996, RSPA published a final rule 
under Docket HM-220A (61 FR 26750) that revised the HMR by clarifying 
current inspection and retest requirements for compressed gas cylinders 
used to transport hazardous materials in commerce. The final rule also 
incorporated certain long-standing regulatory interpretations, and 
added several new provisions. RSPA received four petitions for 
reconsideration of provisions in the final rule. These petitions were 
from representatives of compressed gas suppliers and fire extinguisher 
manufacturers, including petitions from the National Propane Gas 
Association (NPGA) and the Fire Equipment Manufacturers Association 
(FEMA). In this document, RSPA responds to these petitions, clarifies 
two additional provisions and corrects three editorial errors.

Petitions Granted

Retest Intervals for Fire Extinguishers using CO2

    FEMA and another petitioner requested that RSPA reconsider the 
language adopted in Sec. 173.34(e)(19)(ii). Both petitioners stated 
that the revisions could be easily misconstrued to allow DOT 3A, 3AA, 
and 3AL cylinders used as fire extinguishers to be retested at a 12-
year interval ``regardless of their lading'' instead of a 5-year 
interval. In addition, they stated that because fire extinguishers 
containing carbon dioxide or certain carbon dioxide mixtures may be 
corrosive to cylinders, a 12-year retest is insufficient to detect 
possible corrosion before an unsafe condition might occur.
    It is not RSPA's intent for a cylinder containing a corrosive 
extinguishing agent to be granted a 12-year periodic inspection and 
retest, nor is it authorized in the final rule. Section 173.34(e)(19) 
specifically states that ``[a] DOT specification cylinder used as a 
fire extinguisher in compliance with Sec. 173.309 may be retested in 
accordance with this paragraph (e)(19).'' Under Sec. 173.309, cylinders 
used for fire extinguishers may only contain extinguishing agents that 
are nonflammable, non-poisonous, non-corrosive and commercially free 
from corroding components, and must be charged with nonflammable, 
nonpoisonous, dry gas that has a dew-point at or below minus 46.7 
deg.C (minus 52  deg.F) at 101 kPa (1 atmosphere) and is free of 
corroding components.
    RSPA stated in the preambles to the notice of proposed rulemaking 
(60 FR 54008; October 18, 1995) and the final rule that any fire 
extinguisher containing a fire extinguishing medium or propellant gas 
not meeting the requirements in Sec. 173.309(b) (1) and (2) may not be 
shipped under those provisions. Therefore, they do not qualify under 
Sec. 173.34(e)(19) for the 12-year retest interval. For greater 
emphasis, RSPA is adding Special provision 18, in column 7, for the 
entry ``Fire extinguishers containing compressed or liquefied gas'' in 
the Hazardous Materials Table. This special provision is added in 
Sec. 172.102 and contains the lading restriction currently found in 
Sec. 173.309(b). It further provides that any lading not conforming to 
these requirements, including mixtures of 30% or more carbon dioxide by 
volume, must be described by a proper shipping name other than ``Fire 
extinguishers containing compressed or liquefied gas''. In 
Sec. 173.309(b) paragraph (b) (1), (2), and (3) are removed, and the 
introductory text is revised for consistency with this change.

Computing Wall Stress for Overfill Authorization

    In the final rule, RSPA adopted an option in Note 3 of 
Sec. 173.302(c)(3) to provide an alternative for the determination of 
average wall stress limitation through the computation of the Elastic 
Expansion Rejection limit (REE) by using CGA Pamphlet C-5. A petitioner 
wrote RSPA in regard to a May 20, 1991, letter of interpretation from 
the Office of Hazardous Materials Standards (RSPA) which stated, ``* * 
* an elastic expansion rejection limit marked on a cylinder may be used 
to comply with Sec. 173.302(c)(3).'' Upon further review, RSPA is 
allowing the use of REE values computed in accordance with CGA Pamphlet 
C-5 or marked on cylinders by the manufacturer. This change is 
incorporated in Note 3.

Petition Denied

Request for Adoption of NPGA Safety Bulletin 118 as an Alternative 
Standard for Visual Inspection

    In the May 28 final rule, RSPA adopted and updated, as material 
incorporated by reference, several Compressed Gas Association (CGA) 
Pamphlets. Among these, CGA Pamphlet C-6, ``Standards for Visual 
Inspections of Steel Compressed Gas Cylinders'', was updated from the 
1984 to the 1993 edition.
    The NPGA petitioned RSPA to reconsider the language in 
Sec. 173.34(e) (3) and (10), requiring cylinders to be visually 
inspected, internally and externally, in accordance with CGA Pamphlet 
C-6. NPGA stated:
    The present provisions of Sec. 173.34(e)(10) read as follows:

    (10) Cylinders made in compliance with the specifications listed 
in the table below and used exclusively in the service indicated 
may, in lieu of the periodic hydrostatic retest, be given a complete 
external visual inspection at the time such periodic retest becomes 
due. External visual inspection as described in CGA Pamphlet C-6 
will, in addition to the following requirements prescribed herein, 
meet the requirements for visual inspection. When this inspection is

[[Page 51239]]

used in lieu of hydrostatic retesting, subsequent * * *
    As proposed in the NPRM published in the October 18, 1995 
Federal Register, on page 54016, Sec. 173.34(e)(13) would read:
    (13) A cylinder made in conformance with a specification listed 
in the table in this paragraph (e)(13) and used exclusively in the 
service indicated may, instead of a periodic hydrostatic retest, be 
given a complete external visual inspection at the time periodic 
retest becomes due. External visual inspection in accordance with 
CGA Pamphlets C-6 or C-6.1, as applicable, in addition to the other 
requirements of this section, meets the requirement for visual 
inspection. When this inspection is used instead of hydrostatic 
testing, * * *
    Both of these provisions carry the same feature--they recognize 
CGA Pamphlet C-6 as one means of performing the subject external 
visual inspection for requalification of certain cylinders in 
specified services, while at the same time allowing for other means 
of inspection that will accomplish an inspection of equal detail and 
purpose.
    However, in the final rule, Sec. 173.34(e)(13) was amended to 
read:
    (13) A cylinder made in conformance with a specification listed 
in the table in this paragraph (e)(13) and used exclusively in the 
service indicated may, instead of a periodic hydrostatic retest, be 
given a complete external visual inspection at the time periodic 
retest becomes due. External visual inspection must be in accordance 
with CGA Pamphlets C-6 or C-6.1. When this inspection is used 
instead of hydrostatic testing, * * *
     As a consequence of this change, which was not published for 
public review and comment in the Notice of Propose Rulemaking, CGA 
C-6 is now the only recognized method for external visual inspection 
of these cylinders for the purposes of requalification under the 
provisions of the Hazardous Materials Regulations, precluding any 
other valid, equally suitable procedure.
    NPGA publishes a safety bulletin presenting an external visual 
inspection procedure (Safety Bulletin 118 Recommended Procedures for 
Visual Inspection and Requalification of DOT (ICC) Cylinders in LP-
Gas Service) [SB 118-91] for the precise purpose of providing a 
valid means of compliance with the provisions of the present 
Sec. 173.34(e)(10) regarding requalification of LP-gas cylinders for 
continued service. * * *
    NPGA strongly objects to the exclusion of SB-118-91 as a valid 
means of compliance with the provisions of Sec. 173.34(e)(13) as 
amended under HM-220A. Moreover, we object to a substantive 
rulemaking change of this kind without the opportunity for public 
review and comment.
    We respectfully request your reconsideration of this amendment 
and either (1) restoration of the relevant wording from the present 
Sec. 173.34(e)(10) or from the Notice of Proposed Rulemaking or (2) 
adoption of SB 118-91 by reference in Sec. 173.34(e)(13) as an 
alternative procedure of equal stature to CGA Pamphlet C-6.

     RSPA disagrees with NPGA's understanding of these requirements. 
Neither language in Sec. 173.34(e)(10) of Title 49 CFR (parts 100 to 
177, revised as of Oct. 1, 1995) or the language in Sec. 173.34(e)(13) 
of the notice of proposed rulemaking (60 FR 54016, Oct 18, 1995) 
provide for performing an external visual inspection in accordance with 
other than the identified CGA pamphlets. RSPA editorially re-worded the 
cumbersome text in the final rule for clarity only. No advance notice 
of this editorial change was necessary because RSPA only clarified the 
provision.
    As a part of the review of the NPGA petition, RSPA reviewed NPGA 
Safety Bulletin SB 118-91. RSPA found this bulletin not to be 
equivalent to the CGA pamphlets in detail or scope, particularly for 
the visual inspection of compressed gas cylinders. RSPA believes use of 
the NPGA bulletin would not achieve the same level of safety as 
provided in the CGA pamphlets. Therefore, both of the NPGA requests are 
denied.
    RSPA did make an editorial error, however, in the identification of 
these CGA pamphlets in the final rule. In the final rule, section 
173.34(e)(13) was revised to read, ``[e]xternal visual inspection must 
be in accordance with CGA Pamphlets C-6 or C-6.1.'' See 61 FR 26762. 
Both pamphlets contain procedures for performing visual inspections. 
Pamphlet C-6 contains requirements for steel cylinders and C-6.1 
contains requirements for high pressure aluminum cylinders. Pamphlet C-
6.3 contains requirements for the visual inspection of low pressure 
aluminum cylinders. The table in paragraph (e)(13) does not list any 
high pressure aluminum cylinders, but does list a DOT 4E which is a low 
pressure aluminum cylinder. Therefore, paragraph (e)(13) is corrected 
to reference CGA Pamphlets C-6 and C-6.3 in this final rule. For this 
same reason, in Sec. 173.34(e)(10), the reference to CGA Pamphlet C-6.1 
is corrected to read C-6.3. Finally, in Sec. 173.34(e)(19)(ii), the 
parenthetical reference to Sec. 173.36 is corrected to read 
Sec. 178.36.

Clarification

Must a Visual Examiner Who Does Not Hold a Registered Inspector Number 
(RIN) Maintain a Copy of CGA Pamphlet C-6 on file?

    Since the publication of the final rule, several propane cylinder 
retailers who conduct only visual inspections of their cylinders have 
inquired if they must have copies of CGA Pamphlets C-6 and C-6.3 on 
file when they perform visual inspections. The answer is no, a person 
who only performs visual inspections is not required to have a RIN or 
maintain a copy of this pamphlet. However, the person must have been 
trained and be able to perform the visual inspections in accordance 
with the appropriate CGA Pamphlet either C-6 or C-6.3.
    Although the HMR allow an external visual inspection without the 
person having a copy of the CGA pamphlets on hand, RSPA discourages 
this practice. RSPA recommends that a hazmat employer have a copy of 
all training materials that each hazmat employee is expected to use in 
the performance of his or her duties, including technical materials. 
However, as adopted in Sec. 173.34(e)(2)(v)(C) of the May 28 final 
rule, an approved retester with a RIN shall maintain, at each location 
at which it inspects, retests or marks cylinders, copies of each CGA 
pamphlet incorporated by reference in Sec. 171.7 that applies to the 
retester's cylinder inspection, retesting and marking activities at 
that location. Finally, the regulated community should be aware that 
CGA has submitted a petition for rulemaking (P-1090) requesting that 
any person who only performs visual inspections and marks the cylinder 
with the inspection date must possess a current RIN. This issue will be 
addressed in a future rulemaking.

Rulemaking Analyses and Notices

1. 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. The rule is not 
considered significant under the Regulatory Policies and Procedures of 
the Department of Transportation (44 FR 11034). The economic impact of 
this rule is minimal to the extent that preparation of a regulatory 
evaluation is not warranted.

2. Executive Order 12612

    This May 28, 1996 final rule, as amended herein, was analyzed in 
accordance with the principles and criteria contained in Executive 
Order 12612 (``Federalism''). Federal law expressly preempts State, 
local, and Indian tribe requirements applicable to the transportation 
of hazardous material that cover certain subjects and are not 
``substantively the same'' as the Federal requirements. 49 U.S.C. 
5125(b)(1). These covered subjects are:
    (A) The designation, description, and classification of hazardous 
material;
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;

[[Page 51240]]

    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements respecting the number, 
contents, and placement of those documents;
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (E) The design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or a container 
which is represented, marked, certified, or sold as qualified for use 
in transporting hazardous material.
    This final rule preempts State, local, or Indian tribe requirements 
concerning these subjects unless the non-Federal requirements are 
``substantively the same'' (see 49 CFR 107.202(d)) as the Federal 
requirements. RSPA lacks discretion in this area, and preparation of a 
federalism assessment is not warranted.
    Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a 
regulation concerning any of the covered subjects, DOT must determine 
and publish in the Federal Register the effective date of Federal 
preemption. The effective date may not be earlier than the 90th day 
following the date of issuance of the final rule and not later than two 
years after the date of issuance. RSPA determined that the effective 
date of Federal preemption for these requirements in the June 5, 1996 
final rule would be October 1, 1996. The effective date of Federal 
preemption for the changes made in this final rule will be December 30, 
1996.

3. Regulatory Flexibility Act

    This final rule responds to petitions for reconsideration and 
agency review. It is intended to make editorial and technical 
corrections, provide clarification of the regulations and relax certain 
requirements. Therefore, I certify that this final rule will not have a 
significant economic impact on a substantial number of small entities.

4. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule. The May 28, 1996 final rule contains information collection 
requirements, in Sec. 173.34 pertaining to the testing, inspection and 
marking of cylinders, that were approved by the Office of Management 
and Budget under OMB control number 2137-0022 and expires August 31, 
1999.

5. Regulation Identifier Number

    A regulation identifier number 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 regulation identifier number 
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

List of Subjects

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Marking, Packaging and containers, Reporting and recordkeeping 
requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.
    In consideration of the foregoing, 49 CFR parts 172 and 173 are 
amended as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    1. The authority citation for Part 172 continues to read as 
follows:

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


Sec. 172.101  [Amended]

    2. In the Hazardous Materials Table for the entry ``Fire 
extinguishers containing compressed or liquefied gas'', in Column (7), 
Special Provision ``18'' is added.


Sec. 172.102  [Amended]

    3. In Sec. 172.102 (c)(1), Special Provision 18 is added to read as 
follows:


Sec. 172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
    18 This description is authorized only for fire extinguishers 
listed in Sec. 173.309(b) of this subchapter meeting the following 
conditions:
    a. Each fire extinguisher may only have extinguishing contents 
that are nonflammable, non-poisonous, non-corrosive and commercially 
free from corroding components.
    b. Each fire extinguisher must be charged with a nonflammable, 
non- poisonous, dry gas that has a dew-point at or below minus 46.7 
deg.C (minus 52  deg.F) at 101kPa (1 atmosphere) and is free of 
corroding components, to not more than the service pressure of the 
cylinder.
    c. A fire extinguisher may not contain more than 30% carbon 
dioxide by volume or any other corrosive extinguishing agent.
    d. Each fire extinguisher must be protected externally by 
suitable corrosion-resisting coating.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTSAND 
PACKAGINGS

    4. The authority citation for Part 173 continues to read as 
follows:

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


Sec. 173.34  [Amended]

    5. In Sec. 173.34(e), as revised at 61 FR 26758, effective October 
1, 1996, the following changes are made:
    a. In paragraphs (e)(10) and (e)(13), the wording ``CGA Pamphlets 
C-6 or C-6.1'' is removed and ``CGA Pamphlets C-6 or C-6.3'' is added 
in its place.
    b. In paragraph (e)(19)(ii), ``Sec. 173.36'' is revised to read 
``Sec. 178.36''.
    6. In Sec. 173.34, as amended at 61 FR 26758, effective October 1, 
1996, paragraph (e)(19) introductory text is revised to read as 
follows:


Sec. 173.34  Qualification, maintenance and use of cylinders.

* * * * *
    (e) * * *
    (19) Cylinders used as fire extinguishers. Only DOT specification 
cylinders used as fire extinguishers and meeting Special Provision 18 
in Sec. 172.102(c)(1) of this subchapter may be retested in accordance 
with this paragraph (e)(19).
* * * * *
    7. In Sec. 173.302, in paragraph (c)(3), as amended at 61 FR 26764, 
effective October 1, 1996, Note 3 following the table is revised to 
read as follows:


Sec. 173.302  Charging of cylinders with nonliquefied compressed gases.

* * * * *
    (c) * * *
    (3) * * *

    Note 3: Compliance with average wall stress limitation may be 
determined through computation of the elastic expansion rejection 
limit in accordance with CGA Pamphlet C-5 or through the use of the 
manufacturer's marked elastic expansion rejection limit (REE) on the 
cylinder.
* * * * *
    8. In Sec. 173.309, as amended at 61 FR 26764, effective October 1, 
1996, paragraph (b) is revised to read as follows:


Sec. 173.309  Fire extinguishers.

* * * * *
    (b) Specification 3A, 3AA, 3E, 3AL, 4B, 4BA, 4B240ET or 4BW 
(Secs. 178.36, 178.37, 178.42, 178.46, 178.50, 178.51, 178.55 and 
178.61 of this subchapter)

[[Page 51241]]

cylinders are authorized for use as fire extinguishers.

    Issued in Washington, DC on September 23, 1996, under authority 
delegated in 49 CFR part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-24711 Filed 9-30-96; 8:45 am]
BILLING CODE 4910-60-P