[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Rules and Regulations]
[Pages 36802-36807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17124]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 177 and 180

[Docket No. RSPA-97-2718 (HM-225A)]
RIN 2137-AD07


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

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

ACTION: Final rule; response to petition for reconsideration; limited 
stay of implementation date; correction; request for comments.

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SUMMARY: On May 24, 1999, RSPA published a final rule to revise 
regulations applicable to the transportation and unloading of liquefied 
compressed gases. The revisions included new inspection, maintenance, 
and testing requirements for cargo tank discharge systems; revised 
attendance requirements applicable to liquefied petroleum gas and 
anhydrous ammonia; and revised requirements for cargo tank emergency 
discharge control equipment to provide a clear performance standard for 
passive emergency discharge control equipment that shuts down unloading 
operations without human intervention. The revised requirements also 
provide for a remote capability for certain cargo tanks to enable a 
person attending the unloading operation to shut off the flow of 
product when away from the motor vehicle during delivery. This document 
responds to a petition for reconsideration, delays implementation of 
one provision of the final rule as it applies to chlorine unloading 
operations, and corrects an instruction in the final rule.

DATES: Effective Dates: This final rule is effective July 8, 1999. The 
effective date for the final rule published on May 24, 1999, remains 
July 1, 1999. Implementation Date: The implementation date for 
Sec. 177.840(t) as it applies to chlorine cargo tanks is delayed until 
January 1, 2000.
    Comment Date: Submit comments on or before September 7, 1999.

ADDRESSES: Address written comments to the Dockets Management System, 
U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW, 
Washington, DC 20590-0001. Identify the docket number RSPA-97-2718 at 
the beginning of your comments and submit two copies. If you want to 
receive confirmation of receipt of your comments, include a self-
addressed, stamped postcard. You may also submit comments by e-mail by 
accessing the Dockets Management System on the Internet at ``http://
dms.dot.gov'' or by fax to (202) 366-3753.
    The Dockets Management System is located on the Plaza Level of the 
Nassif Building at the Department of Transportation at the above 
address. You can review public dockets there between the hours of 9:00 
a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. In 
addition, you can review comments by accessing the docket management 
system through the DOT home page (http://dms.dot.gov).

FOR FURTHER INFORMATION CONTACT: Jennifer Karim or Susan Gorsky, Office 
of Hazardous Materials Standards, Research and Special Programs 
Administration, (202) 366-8553; or Nancy Machado, Office of the Chief 
Counsel, Research and Special Programs Administration, (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 24, 1999, the Research and Special Programs Administration 
(RSPA; ``we'') published a final rule under Docket No. RSPA-97-2718 
(HM-225A) (64 FR 28030). The final rule revised regulations applicable 
to the transportation and unloading of liquefied compressed gases. The 
revisions include new inspection, maintenance, and testing requirements 
for cargo tank discharge systems, including delivery hose assemblies, 
and revised unloading attendance requirements applicable to liquefied 
petroleum gas and anhydrous ammonia to take account of certain unique 
operating characteristics.
    Further, the final rule revised requirements for cargo tank 
emergency discharge control equipment to provide a clear performance 
standard for passive emergency discharge control equipment that shuts 
down unloading operations without human intervention. The revised 
requirements also provide for a remote capability for certain cargo 
tanks to enable a person attending the unloading operation to shut off 
the flow of product when unloading duties require the person to be away 
from the motor vehicle during delivery.
    The final rule allows two-years for development and testing of 
emergency discharge control technology. After two years, newly 
manufactured MC 331 cargo tank motor vehicles must be equipped with 
emergency discharge control equipment that conforms to the performance 
standards; MC 330, MC

[[Page 36803]]

331 and certain nonspecification cargo tank motor vehicles already in 
service must be retrofitted at their first scheduled pressure test 
after the two-year period. These revisions are intended to reduce the 
risk of an unintentional release of a liquefied compressed gas during 
unloading, assure prompt detection and control of an unintentional 
release, and make the regulatory requirements easier to understand and 
comply with.

II. Negotiated Rulemaking Process

    The May 24, 1999 final rule was developed through a negotiated 
rulemaking. In a negotiated rulemaking, representatives of interests 
affected by a regulation meet as an advisory committee to discuss the 
safety issues and to identify potential solutions. The group attempts 
to reach consensus on a proposed solution and prepares a recommendation 
for a notice of proposed rulemaking to be made by the agency. This 
process is intended to give parties the opportunity to find creative 
solutions, improve the information data base for decisions, produce 
more acceptable rules, enhance compliance, and reduce the likelihood of 
court challenges.
    For this rulemaking, in addition to the Department of 
Transportation (DOT), the negotiated rulemaking committee consisted of 
persons who represent the interests affected by this rulemaking, 
including businesses that transport and deliver liquefied petroleum 
gases, anhydrous ammonia and other liquefied compressed gases; 
manufacturers and operators of cargo tanks and vehicle components; and 
state and local public safety and emergency response agencies.
    From the beginning, our goal has been an open and inclusive process 
that would enable anyone with an interest in the rulemaking to provide 
information and to comment on proposals. The document announcing our 
intention to establish a negotiated rulemaking committee (63 FR 30572; 
June 4, 1998) listed those interests that we believed should be 
represented on the Committee and invited commenters to identify other 
interests that should also be represented. The document identified the 
Compressed Gas Association and National Tank Truck Carriers as 
organizations that should be included on the Committee to represent the 
interests of manufacturers and transporters of liquefied compressed 
gases other than liquefied petroleum gas and anhydrous ammonia. We 
received no comments suggesting that additional representation should 
be considered.
    Once the Committee was established, interested parties who were not 
selected for membership were invited to attend Committee meetings, 
which were open to the public, and to caucus with Committee members 
representing their interest on the Committee. Interested parties could 
also address the Committee, submit written comments on issues of 
concern, and participate in the informal work groups that were 
established by the Committee to address certain technical issues and 
draft regulatory text. Representatives of the Chlorine Institute 
participated in several meetings of the negotiated rulemaking 
committee. They were provided with draft rulemaking documents and 
encouraged to provide us with comments and suggestions to address any 
concerns. Their suggestion to incorporate the Chlorine Institute's 
Pamphlet 57 entitled ``Emergency Shut-off Systems for Bulk Transfer of 
Chlorine'' into the HMR was adopted, as were several suggestions for 
changes to the draft to reflect the unique nature of chlorine unloading 
operations. These suggestions were part of the notice of proposed 
rulemaking (NPRM) published on March 22, 1999 (64 FR 13856).
    The Chlorine Institute submitted formal comments on the NPRM on 
April 21, 1999. On April 28, 1999, we met informally with 
representatives of the Chlorine Institute to clarify their comments and 
to discuss alternatives for addressing their concerns. All but one of 
the comments submitted by the Chlorine Institute were accommodated in 
the May 24 final rule.

III. Petition for Reconsideration

    On June 17, 1999, the Chlorine Institute filed a petition for 
reconsideration and motion for partial stay of the final rule. (The 
petition for reconsideration and motion for partial stay of the final 
rule is reprinted as Appendix A to this final rule. The attachments to 
the Chlorine Institute's petition can be reviewed by accessing the 
Docket Management System through the DOT home page (http://dms.dot.gov) 
or in person at the Dockets Management System at the address indicated 
above.) The Chlorine Institute seeks reconsideration of two provisions 
of the May 24, 1999 final rule as they apply to cargo tanks used to 
transport and deliver chlorine. Specifically, the Chlorine Institute 
requests reconsideration of the requirement in Sec. 173.315(n)(2) for 
emergency discharge control equipment that operates without human 
intervention to be certified by a Design Certifying Engineer (DCE). In 
addition, the Chlorine Institute seeks reconsideration and a stay of 
the requirement in Sec. 177.840(t) that, until a chlorine cargo tank is 
equipped with emergency discharge control equipment that conforms to 
requirements in the final rule, the qualified person attending the 
unloading operation must remain within arm's reach of a means to stop 
the flow of product.

IV. Petition Partially Denied

    In Sec. 173.315(n), the May 24, 1999 final rule established 
emergency discharge control system requirements for cargo tanks in 
liquefied compressed gas service. Cargo tanks transporting materials 
that are poisonous by inhalation, including chlorine, are required to 
be equipped with a means to automatically stop product flow without 
human intervention within 20 seconds of an unintentional release caused 
by a complete delivery hose separation, also referred to as a passive 
shut-down capability. This section also makes clear that the design for 
a passive shut-down capability, including systems installed prior to 
July 1, 2001, must be certified by a DCE. The certification must 
consider any specifications of the original component manufacturer and 
must explain how the passive shut-down capability operates. It must 
also outline the parameters (e.g., temperature, pressure, types of 
product) within which the passive shut-down capability is designed to 
operate. All components of the discharge system that are integral to 
the design must be included in the certification.
    The Chlorine Institute asserts that the May 24, 1999 final rule 
imposes a ``new, unnecessary and wholly unjustified set of additional 
regulatory requirements'' for cargo tanks used to transport and deliver 
chlorine. The Chlorine Institute states that, because chlorine is 
unloaded by pressure rather than by pump, the emergency discharge 
control system on chlorine cargo tanks, of which an excess flow valve 
is a key component, has operated successfully for 40 years. In light of 
its ``flawless'' unloading experience, the Chlorine Institute states 
that there is no possible benefit to requiring the emergency discharge 
control system on a chlorine cargo tank to be certified by a DCE. The 
Chlorine Institute also notes that the excess flow valve used on 
chlorine cargo tanks was extensively tested in the 1960s before it was 
put into widespread service. According to the Chlorine Institute, test 
results (included with the petition as an appendix) indicate that there 
will always be sufficient internal pressure in the cargo tank to assure 
that the excess flow valve will operate. The Chlorine Institute 
continues, ``Given the fact that the excess flow valve was designed 
many years ago, there is considerable doubt that the valve itself could 
or

[[Page 36804]]

would be certified by a `Design Certifying Engineer' who would have had 
no part in its design. While the design certification requirement may 
make sense in some circumstances, it plainly makes no sense in the 
chlorine situation, and would add nothing to the safety of chlorine 
unloading.''
    The Chlorine Institute asserts that excess flow valves have 
functioned successfully in chlorine cargo tanks since the 1960s and 
that tests conducted before they were placed in widespread service 
demonstrate that an excess flow valve will close at a pressure well 
below the pressure differential that would be experienced in a complete 
hose separation during unloading. However, the requirement in the May 
24 final rule is for certification of the emergency discharge control 
system, of which the excess flow valve is only one component. System 
certification was a key issue in the HM-225A negotiated rulemaking. As 
individual component manufacturers noted, an excess flow valve is only 
required to close if its flow rating, as established by the 
manufacturer, is exceeded. Manufacturers of excess flow valves who 
participated in the negotiated rulemaking advised that, in addition to 
restrictions in downstream piping caused by pumps, other variables may 
restrict the circumstances under which an excess flow valve will 
operate. Such variables include other restrictions in the discharge 
system (e.g., branching, elbows, reductions in pipe diameter), low 
operating pressures, or a partially closed valve downstream from the 
excess flow valve, all of which restrict the rate of flow through the 
excess flow valve. For this reason, the final rule included the 
requirement that the entire emergency discharge control system rather 
than individual components of the system be certified to meet the new 
performance standard. All components of the discharge system that are 
integral to the design must be included in the certification. Further, 
the certification must specify the parameters (e.g., temperature, 
pressure, types of product) within which the system is designed to 
operate.
    Because of the requirement that the entire emergency discharge 
control system rather than individual components of that system be 
certified, the May 24 final rule recognizes that component 
manufacturers may be reluctant to provide a performance certification 
for a system of which their component is only a part. Thus, the final 
rule requires that the certification be provided by a DCE, who may be 
employed by a cargo tank manufacturer, a component manufacturer, a 
cargo tank owner or operator, or a third party. The DCE need not have 
had any part in the actual design of the emergency discharge control 
system being certified. Rather, the DCE is expected to review design 
specifications and test results and to conduct any additional tests 
deemed necessary to verify that the system operates as designed within 
the parameters specified for its operation. The design for each type of 
emergency discharge control system is certified once by a DCE; provided 
the system is installed according to the certification, the single DCE 
certification serves for all cargo tanks equipped with that type of 
system.
    The Chlorine Institute proposes that we remove cargo tanks 
unloading chlorine by pressurization from the May 24 final rule 
requirements. This part of the petition for reconsideration is denied. 
We recognize that unintentional releases of liquefied compressed gases 
as a result of complete hose separations during unloading are 
infrequent occurrences. However, an unintentional release of a gas that 
is poisonous by inhalation, such as chlorine, which is a PIH Hazard 
Zone B material, may have very serious consequences if it is not 
controlled quickly. The requirement in the May 24 final rule for a 
passive shut-down capability on chlorine cargo tanks is designed to 
address potential risks to public safety associated with low-
probability/high consequence events. The Chlorine Institute has not 
provided sufficient information to justify its request for an exception 
from this requirement.
    As an alternative, the Chlorine Institute suggests that RSPA 
clarify that, ``by virtue of [its] 40 years of flawless operation'' and 
based on the results of tests conducted on railroad tank car systems in 
the 1960s, the chlorine excess flow valve is certified within the 
meaning of the May 24 final rule. This part of the petition for 
reconsideration is also denied.
    We do not believe that DOT certification of components or systems 
installed on cargo tanks is either appropriate or necessary. The 
principle of cargo tank design certification by a DCE is well-
established in the HMR, and this method for independent certification 
of compliance with the cargo tank regulations works well.
    Further, certification of the excess flow valve would not meet the 
requirements for certification established in the May 24 final rule. 
First, the rule requires certification of emergency discharge control 
systems, not individual components of those systems. Second, the 
certification must include a description of each emergency discharge 
control system and the parameters within which the system is designed 
to operate. Neither of these requirements is satisfied by the Chlorine 
Institute's proposal.

V. Petition Partially Granted and Request for Comments

    Section 177.840(t) of the May 24, 1999 final rule requires that, 
until a cargo tank in chlorine service is equipped with emergency 
discharge control equipment in conformance with the final rule, the 
qualified person attending the unloading operation must remain within 
arm's reach of a means to stop the flow of product. The Chlorine 
Institute notes that chlorine is unloaded from a valve located on top 
of the cargo tank. To be within arm's reach of a means to shut down 
unloading, a person must ``perch precariously atop than [sic] tank for 
the several hours necessary to complete the unloading process.''
    The May 24 final rule requires chlorine being unloaded from cargo 
tanks after July 1, 2001 to comply with procedures set forth in section 
3 of the Chlorine Institute's Pamphlet 57. (This provision does not 
apply to unloading of cargo tanks that are equipped with emergency 
discharge control systems certified in accordance with Sec. 173.315(n) 
of the May 24 final rule.) Facilities equipped for unloading in 
conformance with Pamphlet 57 have a remote location from which the 
unloading operation can be shut down in the event of an unintentional 
release or other emergency. For these facilities, the requirement to be 
within arm's reach of a means to shut down unloading is met when the 
person attending the unloading operation is within arm's reach of the 
remote shut-down location. However, not all facilities are equipped for 
unloading in conformance with Pamphlet 57.
    We agree with the Chlorine Institute that additional time is 
necessary to consider alternatives to the requirement in 
Sec. 177.840(t) that the person attending a chlorine cargo tank be 
within arm's reach of a means to shut down the unloading operation. 
Therefore, the petition for a stay of the implementation date of this 
provision of the May 24 final rule is granted. The implementation date 
for Sec. 177.840(t), as it applies to chlorine unloading at facilities 
that do not conform to Pamphlet 57, is delayed to January 1, 2000. 
During that time, we will consider viable alternatives that may be 
proposed by interested parties for monitoring the unloading of chlorine 
from cargo tanks that are not equipped with an emergency discharge 
control system

[[Page 36805]]

certified in conformance with Sec. 173.315(n) of the May 24 final rule.
    In addition, we are requesting comments on issues raised in the 
Chlorine Institute's petition for reconsideration. Specifically, we 
wish to know:
    (1) How many cargo tanks are affected by the transition provision 
in Sec. 177.840(t) as it applies to chlorine unloading?
    (2) How many facilities at which unloading of cargo tanks is 
performed by carrier personnel are not yet equipped for unloading in 
conformance with Pamphlet 57?
    (3) How many unloading operations are conducted at such facilities 
each year?
    (4) Are there other ways to conduct chlorine unloading operations 
that will achieve an equivalent level of safety as required by 
Sec. 177.840(t)?
    (5) Are all cargo tanks engaged in transporting chlorine fitted 
with the same piping configuration, or are there significant 
differences?
    (6) What other issues should we consider in resolving this issue?

VI. Correction

    In the May 24, 1999 final rule, instruction 19 incorrectly 
redesignated several paragraphs in Sec. 180.407. This redesignation is 
corrected in this final rule.

VII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This final rule is not 
considered significant under the Regulatory Policies and Procedures of 
the Department of Transportation (44 FR 11034).
    RSPA did not prepare a regulatory evaluation for this final rule 
addressing the delay in implementation of the transition provision 
affecting monitoring of chlorine unloading operations. However, a final 
regulatory evaluation was prepared in support of the final rule 
published on May 24, 1999. The final regulatory evaluation is available 
for review in the public docket.

B. Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612 (``Federalism''). 
Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, 
contains an express preemption provision (49 U.S.C. 5125(b)) that 
preempts state, local, and Indian tribe requirements on certain covered 
subjects. Covered subjects are:
    (i) the designation, description, and classification of hazardous 
material;
    (ii) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (iii) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the number, 
contents, and placement of those documents;
    (iv) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (v) the design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule addresses covered subjects under item (ii) above 
and preempts state, local, or Indian tribe requirements not meeting the 
``substantively the same'' standard. Federal hazardous materials 
transportation law provides at Sec. 5125(b)(2) that if RSPA issues a 
regulation concerning any of the covered subjects RSPA must determine 
and publish in the Federal Register the effective date of Federal 
preemption. The effective date may not be earlier than the 90th day 
following the date of issuance of the final rule and not later than two 
years after the date of issuance. Thus, RSPA lacks discretion in this 
area, and preparation of a Federalism assessment is not warranted. The 
effective date of Federal preemption for these requirements is October 
6, 1999.

C. Executive Order 13084

    This final rule has not been analyzed in accordance with the 
principles and criteria in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because revised rules 
and regulations in this final rule are not expected to significantly or 
uniquely affect communities of Indian tribal governments, the funding 
and consultation requirements of this Executive Order do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. RSPA 
conducted this assessment for the final rule published May 24, 1999. 
The delay in implementation for the transition provision on monitoring 
unloading operations from chlorine cargo tanks does not change the 
conclusions reached in that assessment. Thus, I hereby certify that 
this final rule will not have a significant economic impact on a 
substantial number of small businesses.

E. Paperwork Reduction Act

    This final rule imposes no new information collection burdens. The 
requirements for information collection included in the May 24, 1999 
final rule are approved by the Office of Management and Budget under 
OMB control number 2137-0595. Under the Paperwork Reduction Act of 
1995, no person is required to respond to a collection of information 
unless it displays a valid OMB control number.

F. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN containing in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

G. Unfunded Mandates Reform Act

    This final rule imposes no mandates and thus does not impose 
unfunded mandates under the Unfunded Mandates Reform Act of 1995.

H. Impact on Business Processes and Computer Systems

    Many computers that use two digits to keep track of dates will, on 
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900. 
This glitch, the Year 2000 problem, could cause computers to stop 
running or to start generating erroneous data. The Year 2000 problem 
poses a threat to the global economy in which Americans live and work. 
With the help of the President's Council on Year 2000 Conversion, 
Federal agencies are reaching out to increase awareness of the problem 
and to offer support. We do not want to impose new requirements that 
would mandate business process changes when the resources necessary to 
implement those requirements would otherwise be applied to the Year 
2000 problem.
    This final rule does not mandate business process changes or 
require modifications to computer systems. Because this rule apparently 
does not affect organizations' ability to respond

[[Page 36806]]

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

I. Environmental Assessment

    RSPA did not perform an environmental assessment of this final 
rule. RSPA did conduct an environmental assessment for the final rule 
published May 24, 1999. The delay in implementation for the transition 
provision on monitoring unloading operations from chlorine cargo tanks 
does not change the conclusions reached in that assessment.

List of Subjects

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive 
materials, Reporting and recordkeeping requirements.

49 CFR Part 180

    Hazardous materials transportation, Motor carriers, Motor vehicle 
safety, Packaging and containers, Railroad safety, Reporting and 
recordkeeping requirements.
    In consideration of the foregoing, we are amending 49 CFR parts 177 
and 180 as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

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

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

    2. In Sec. 177.840, in paragraph (t) the last sentence is revised 
to read as follows:


Sec. 177.840  Class 2 (gases) materials.

* * * * *
    (t) * * * For chlorine cargo tanks unloaded after December 31, 
1999, the qualified person must remain within arm's reach of a means to 
stop the flow of product except for short periods when it is necessary 
to activate controls or monitor the receiving container.
* * * * *

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

    3. In rule document 99-12860, beginning on page 28030 in the issue 
of Monday, May 24, 1999, make the following correction:


Sec. 180.407  [Corrected]

    On page 28051, column 2, in amendatory instruction 19., beginning 
in the second line, correct ``existing paragraphs (h)(4) through (h)(8) 
are redesignated as paragraphs (h)(5) through (h)(9), respectively'' to 
read ``existing paragraph (h)(4) is redesignated as paragraph (h)(5)''.

    Issued in Washington, DC on June 29, 1999, under authority 
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Administrator.

Appendix A to the Preamble

Expedited Consideration Requested

Before the United States Department of Transportation, Research and 
Special Programs Administration

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

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

Motion for Partial Stay of the Final Rule and Petition of the Chlorine 
Institute, Inc. for Reconsideration and Clarification of the Final Rule

I. Introduction

    Pursuant to the provisions of 49 CFR Sec. 106.35, the Chlorine 
Institute, Inc., hereby files this Motion for Partial Stay and 
Petition for Reconsideration and Clarification of the final rule 
issued in this docket.
    The final rule issued on May 24, 1999, (64 F.R. 28030) creates a 
new, unnecessary, and wholly unjustified set of additional 
regulatory requirements for MC 330 and MC 331 cargo tank motor 
vehicles when unloading chlorine. These new regulatory requirements 
are unsupported by the record of this docket, and ignore 40 years of 
flawless chlorine unloading experience. The Chlorine Institute, Inc. 
submits that these requirements should either be withdrawn, or so 
modified as to remove their more onerous provisions.

II. Background of the Rulemaking

    Section 178.337-11(a)(1)(i) of Title 40 CFR provides that with 
respect to cargo tank motor vehicles used to transport chlorine, as 
well as other compressed gases:
    Each internal self-closing stop valve and excess flow valve must 
automatically close if any of its attached hoses are sheared off or 
if any attached hoses or piping are separated.
    In it final rule in Docket HM-225 issued August 18, 1997, RSPA 
noted that ``efforts undertaken by the affected industries (not 
including the chlorine industry) to achieve increased efficiency in 
the unloading of hazardous materials by the installation of pumps on 
specification MC 330 and MC 331 cargo tank motor vehicles prevent 
emergency discharge control systems from operating properly under 
all temperatures and pressures routinely encountered during normal 
conditions or transportation.'' (62 F.R. 44039) In the same 
document, RSPA noted that the problems encountered by MC 330 and MC 
331 cargo tank motor vehicles using pumps to unload did not exist 
when pressure, rather than pumps, were employed. Thus, RSPA held:
    Unloading systems that employ pressure rather than a pump to 
unload such as a gas compressor mounted on specification MC 330 and 
MC 331 cargo tank motor vehicles should not be affected by the 
problem identified with unloading of liquefied compressed gases by 
use of pumps, provided the operating pressure of the compressor, the 
flow rate of product through valves, piping, and hose, and the 
setting of the emergency feature conform to requirements in 
Sec. 178.337-11(a)(1)(v). Vehicles unloaded by pressure and 
conforming to the requirements of Sec. 178.337-11(a)(1) are not 
subject to the temporary regulations specified in Sec. 171.5. (62 
F.R. 44039)
    Throughout the HM-225A rulemaking procedures that followed the 
HM-225 final rule, there was never any doubt but that chlorine is 
unloaded under pressure within the meaning of the HM-225 final rule. 
Further, there never has been any question but that the excess flow 
valves used on MC 330 and MC 331 cargo tank motor vehicles 
transporting chlorine (CI Drawings 101 and 104) comply fully with 
Sec. 178.337-11(a)(1)(v). In addition, the Chlorine Institute is 
unaware of, and the record herein fails to disclose, a single 
incident in the 40 years these valves have been in use in chlorine 
service where such excess flow valve has failed to operate properly.

III. The Final Rule

    While the HM-225 and HM-225A rulemaking procedures focused 
almost entirely on the failures of pump unloading systems involving 
liquefied petroleum gas and anhydrous ammonia, the final rule places 
regulatory requirements on pressure unloading chlorine cargo tank 
motor vehicles as well. It is not surprising therefore that the 
final rule is ill-considered and erroneous as it applies to chlorine 
unloading.
    The final rule impacts chlorine motor vehicle unloading in two 
fundamental respects. First, the new section 173.351(n)(2) requires 
that a ``Design Certifying Engineer'' certify that the excess flow 
valve so long and so successfully used on MC 330 and MC 331 cargo 
tank motor vehicles is, in fact properly designed and will operate 
within the necessary parameters to satisfy the rule.
    Secondly, section 177.840(t) requires that until the chlorine 
cargo tank transfer system is certified, a qualified person must be 
within arms length of the chlorine cargo tank's valve located on the 
top of the cargo tank. Thus, the qualified person must perch atop 
the tank to meet the requirement. It must be noted, of course, this 
requirement does not apply when the tank is being unloaded after the 
tank has been separated from the motive power unit and that unit has 
left the facility.
    With respect to the design certification requirement for 
chlorine cargo tanks, the final rule is wholly unwarranted. With 
respect to the arms length requirement, it is not only unwarranted, 
it creates an unsafe condition while only partially attaining its 
ill-considered objective.

IV. Reasons for Reconsidering the Final Rule

    As noted above, the problems that gave rise to the HM-225 rules, 
and ultimately to this docket, have nothing to do with the unloading 
of chlorine. Chlorine, unloaded by pressure rather than by pump, has 
not been

[[Page 36807]]

released during the unloading process. The excess flow valves have 
operated successfully for 40 years, and there is no allegation that 
chlorine cargo tank vehicles equipped with those valves do not 
comply fully with Sec. 178.336-11(a)(1)(i).
    What possible benefit, therefore, follows from a certification 
by a ``Design Certifying Engineer'' that the valve will properly 
operate when it has properly operated for 40 years? The answer, of 
course, is none.
    In addition to its flawless operation, the excess flow valve 
used on chlorine cargo tank motor vehicles was extensively tested in 
the 1960's before it was put into widespread service. As the 
materials attached hereto as Appendix A demonstrate, the excess flow 
valve, peer CI Drawings 101 and 104 will close at a pressure of 9 
psig, a value well below the pressure differential that would be 
experienced in a complete hose separation during unloading. Since, 
as previously noted, chlorine is unloaded by pressurizing the tank, 
there will always be sufficient internal pressure to ensure that the 
excess flow valve will operate as required.
    Given the fact that the excess flow valve was designed many 
years ago, there is considerable doubt that the valve itself could 
or would be certified by a ``Design Engineer'' who would have had no 
part of its design. While the design certification requirement may 
make sense in some circumstances, it plainly makes no sense in this 
chlorine situation, and would add nothing to the safety of chlorine 
unloading.
    The arms length requirement discussed above suffers from two 
major flaws. First, the majority of chlorine MC 330 and MC 331 tanks 
are unloaded after the motive power has been detached and has left 
the receiving facility. Thus, under sections 171.8, 177.834, and 
178.337-11, the detached tank is no longer a cargo tank within the 
meaning of the Hazardous Materials Regulations, and is no longer 
subject to the provisions of the final rule.
    Of greater importance is the fact that, unlike propane and 
ammonia tanks, the chlorine tank is unloaded from a valve located 
atop the tank. Accordingly, for a person to be within arms length of 
the valve during unloading he or she must perch precariously atop 
the tank for the several hours necessary to complete the unloading 
process. This requirement reflects the fact that the chlorine tank 
was never really considered during the rulemaking process, and 
appears in the final rule unexpectedly and inappropriately. Further, 
since the arms length provisions of the final rule become effective 
on July 1, 1999, a serious safety issue is present.
    In view of the safety concerns raised with respect to chlorine 
unloading, the final rule should be stayed insofar as it would 
require persons to stand atop chlorine MC 330 or MC 331 cargo tank 
motor vehicles during chlorine unloading.

V. Proposed Solution

    The Chlorine Institute participated in this rulemaking in only a 
minor way for the reasons described above. The Institute has no 
desire to complicate this matter to any degree greater than is 
necessary to overcome the obvious and serious problems discussed 
herein. Thus, the Institute proposed to resolve the problems created 
by the final rule in the simplest and least disruptive way possible.
    The genesis of the problems raised by the final rule is the 
requirement that the chlorine excess flow valve be certified by a 
``Design Certifying Engineer.'' A clarification of the final rule by 
RSPA that acknowledges that the chlorine excess flow valve, by 
virtue of the materials attached in Appendix A, and by virtue of the 
40 years of flawless operation, has been certified within the 
meaning of the rule would eliminate all problems associated with 
implementation of the rule.1
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    \1\ It must be noted, of course, that the excess flow valve 
discussed herein is designed to, and does operate in the event of a 
complete separation of the unloading hose. In this regard it fully 
satisfies the provisions of 49 CFR Sec. 178.337-11(a)(1)(1). 
Chlorine Institute Pamphlet 57 referenced by RSPA in this rule, 
contains a system for dealing with incidents that do not involve a 
complete separation and therefore do not trigger the requirements of 
Sec. 178.337-11(a)(1)(i).
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    To be sure, such a clarification would not deal with the obvious 
problem that the rules should never have addressed pressurized 
unloading in the first place. But, at least it would eliminate the 
serious practical problems facing the industry as a result of the 
ill-advised inclusion of the chlorine in the rulemaking process, and 
would remove the requirement for a qualified person to perch atop a 
cargo tank for the minimum period of three necessary to unload a 
chlorine cargo tank.

VI. Conclusion

    In view of the foregoing, the Institute submits that the final 
rule be modified so as to remove cargo tanks and cargo tank motor 
vehicles unloading chlorine by pressurization from the requirements 
of the rule. In the alternative, the Institute requests that RSPA 
clarify the final rule so as to determine that chlorine excess flow 
valves in use on MC 330 and MC 331 chlorine cargo tank motor 
vehicles have been certified within the meaning of the rule.
    In addition, inasmuch as the arms length requirements of the 
rule become effective on July 1, 1999, and enforcement of those 
provisions could cause serious risks to persons unloading chlorine, 
the Institute moves that those requirements be stayed while this 
petition is reviewed by RSPA.

    Respectfully submitted,
Paul M. Donovan,
LaRoe, Winn, Moerman & Donovan, 3900 Highwood Court, N.W., Washington, 
DC 20007, (202) 298-8100, Attorney for Petitioner.
    Dated at Washington, DC, June 17, 1999.

[FR Doc. 99-17124 Filed 7-7-99; 8:45 am]
BILLING CODE 4910-60-P