[Federal Register Volume 67, Number 5 (Tuesday, January 8, 2002)]
[Proposed Rules]
[Pages 852-853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-445]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 173

[Docket No. RSPA-01-10741 (HM-220C)]
RIN 2137-AC86


Hazardous Materials: Filling of Propane Cylinders; Denial of 
Petition for Rulemaking

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

ACTION: Denial of petition for rulemaking and termination of docket HM-
220C.

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SUMMARY: RSPA is denying a petition for rulemaking filed by the 
Barbecue Industry Association requesting we require the registration of 
facilities that fill liquefied petroleum gas (LPG) cylinders having a 
water capacity of less than 200 pounds.

FOR FURTHER INFORMATION CONTACT: Gigi Corbin or Eileen Edmonson, (202) 
366-8553, Office of Hazardous Materials Standards, Research and Special 
Programs Administration.

SUPPLEMENTARY INFORMATION:

Background

    On August 23, 1996, the Research and Special Programs 
Administration (RSPA, we) published an advance notice of proposed 
rulemaking (ANPRM) (61 FR 43515) to solicit comments on the merits of a 
petition for rulemaking filed by the Barbecue Industry Association 
(BIA) (P-1298). In its petition, BIA requested we amend the Hazardous 
Materials Regulations (HMR; 49 CFR parts 171-180) to require the 
registration of persons who fill DOT specification cylinders that have 
a water capacity of less than 200 pounds (about 24 gallons); are used 
for liquefied petroleum gas, a Division 2.1 (flammable) gas; and that 
come under the jurisdiction of the HMR. To obtain this registration, 
BIA proposed that the fillers' facilities and qualifications be 
reviewed by an independent inspection agency approved according to 
Sec. 173.300a of the HMR. BIA proposed that registrants submit an 
application containing the following documentation:
    (1) A certification of employee training;
    (2) A certification that the filling equipment is suitable for use 
with LPG to provide for accurately filling the cylinders by weight 
according to current Sec. 173.304(c);
    (3) Proof of financial responsibility in the minimum amount of one 
million dollars; and
    (4) An inspection report prepared by an independent inspection 
agency.
    BIA's major concern is overfilling of propane cylinders used for 
barbecue grills. These cylinders are commonly called 20-pound 
cylinders, hold about five gallons, and are usually sold directly to 
consumers. BIA states that more than 5 million barbecue grills were 
sold in 1993, that the National Petroleum Gas Association (NPGA) 
estimates 50 million propane cylinders are currently in use, and that 
an additional 5 to 6 million are produced annually. BIA states that 
these market conditions have encouraged fill stations to use untrained 
employees to fill and service 20-pound cylinders. BIA asserts that the 
wide variations in current training and filling practices and 
inadequate regulations by state and local jurisdictions result in 
consumer injuries and deaths. BIA suggests Federal regulation will 
eliminate these differences and promote safer use of propane cylinders. 
BIA provided no estimates on the number of fillers that potentially 
would be affected by the proposal. The text of the petition was 
published verbatim in the ANPRM.

Comment Summary

    To determine the possible impacts of BIA's proposal, the ANPRM 
included a request of commenters to provide estimates of the proposal's 
anticipated costs and safety benefits, burden hours, and the potential 
impact on small businesses and the environment. We received 11 comments 
from persons representing state and local agencies, trade associations, 
cylinder fillers and requalifiers, and the general public. The 
commenters unanimously oppose BIA's proposals, primarily because the 
costs associated with their implementation would be extremely high.
    Most commenters agree that training is necessary for propane 
refillers; however, they object to BIA's training proposal. They state 
that existing state and Federal requirements cover most propane filling 
scenarios, including training, and that additional Federal regulations 
would be duplicative and confusing, and would increase costs. The NPGA 
states that the National Fire Protection Association (NFPA) Standard 
58, titled ``Storage and Handling of Liquefied Petroleum Gases,'' is 
consistent with the HMR and is used as the basis of LPG regulation ``in 
virtually every state.'' This pamphlet discusses how to fill and 
transport these cylinders, even when customer-owned, and how to train 
employees performing

[[Page 853]]

these operations. The Railroad Commission of Texas (RCT) maintains that 
the BIA proposal would not enhance safety in Texas; it notes that Texas 
had only two reported overfilling accidents in the past five years, 
neither of which was serious.
    Most commenters agree that certification of scales to ensure their 
accuracy is a necessary safety practice, but note that these activities 
are currently regulated by the states. As the NPGA states:

    At present, the Hazardous Materials Regulations do not contain a 
provision that a company weighing a package as part of a 
manufacturing or hazmat filling operation must use a scale certified 
in accordance with NIST/NCWM Handbook 44 Specifications, Tolerances, 
and Other Technical Requirements for Weighing and Measuring Devices. 
It has always been understood that such weighing operations are 
subject to state weights and measure laws and regulations and, 
therefore, are not a matter of DOT jurisdiction. Consequently, NPGA 
believes that the amendments proposed by BIA to require certified 
scales for cylinder filling is beyond the scope of the HMR and 
should therefore be denied.

    Commenters objecting to the BIA proposal to require each propane 
filler to carry one million dollars in liability insurance state that 
the proposal is excessive and few small businesses can afford the 
amount. Three commenters report existing insurance requirements in 
their states. The Louisiana Liquefied Gas Commission states that it 
requires propane filling businesses to carry a minimum of $100,000 in 
insurance. RTC states that Texas requires licensed small cylinder 
fillers ``to carry a general liability policy including premises and 
operations in an amount of at least $25,000 per occurrence and $300,000 
in the aggregate.'' This latter commenter estimates that carrying one 
million dollars in liability insurance would increase the insurance 
costs of its licensees from an average of $750 a year to $2,000 a year.
    Finally, commenters object to the use of an independent inspection 
agency for inspecting a filler's qualifications and operations. They 
state that these agencies are not prepared to assume these additional 
responsibilities. One commenter notes that his state's Division of 
Weights and Measures requires all propane refilling scales to be tested 
yearly by an independent inspection agency and documented with the 
state.

Discussion

    Federal hazardous materials transportation law (federal hazmat 
law), codified at 49 U.S.C. 5101 et seq., authorizes the Secretary of 
Transportation to establish regulations for the safe transportation of 
hazardous materials in intrastate, interstate, and foreign commerce. 
The regulations apply to persons who: (1) Transport hazardous materials 
in commerce; (2) cause hazardous materials to be transported in 
commerce; or (3) manufacture, mark, maintain, recondition, repair, or 
test packagings (or components thereof) that are represented, marked, 
certified, or sold as qualified for use in the transportation of 
hazardous materials in commerce. 49 U.S.C. 5103(b)(1)(A).
    The HMR apply to hazardous materials in cylinders offered for 
transportation or transported in commerce. For example, DOT 
specification cylinders must be designed, manufactured, and maintained 
in accordance with applicable HMR requirements. In addition, cylinders 
offered for transportation and transported in commerce must be filled 
as specified in Sec. 173.304 of the HMR. Further, persons who fill and 
offer such cylinders for transportation in commerce must be trained. A 
company that fills cylinders intended for use in barbecue grills and 
offers such cylinders for transportation to a distribution or retail 
facility is subject to all applicable HMR requirements.
    Many state and local governments have adopted and are enforcing the 
standards contained in NFPA Standard 58. The 1998 edition of this 
standard requires certain propane cylinders having capacities from 4 to 
40 pounds to be fitted with overfilling prevention devices (OPDs). The 
standard defines an OPD as ``a safety device that is designed to 
provide an automatic means to prevent the filling of a container in 
excess of the maximum permitted filling limit.'' The standard requires 
an OPD and a fixed maximum liquid level gauge to be fitted on any 
cylinder manufactured after September 30, 1998, requalified after 
September 30, 1998, or filled on or after April 1, 2002. These newer 
OPDs are easily recognizable by a unique trilobular handwheel. The OPD 
handwheel is connected to the valve stem in a tamper-proof manner to 
prevent interchanging with a non-OPD valve. The use of OPDs on propane 
cylinders is supported by the Consumer Product Safety Commission and 
the Occupational Safety and Health Administration.

Conclusion

    We agree with commenters to the ANPRM that the BIA proposal would 
impose significant costs on the industry. Further, the BIA proposals 
would not address safety problems involving refilling of consumer-owned 
barbecue cylinders since these are outside the scope of the 
Department's jurisdiction. Moreover, as commenters suggest, the BIA 
proposals unnecessarily duplicate state and local regulations 
applicable to refilling of cylinders. Finally, the NFPA 58 standard for 
OPDs on certain propane cylinders appears to address the safety issue 
of concern to BIA. For these reasons, we are denying BIA's petition. In 
consideration of the foregoing, Docket No. RSPA-01-10741 (HM-220C) is 
terminated.

    Issued in Washington, DC, on January 2, 2002, under the 
authority delegated in 49 CFR part 106.
Frits Wybenga,
Deputy Associate Administrator for Hazardous Materials Safety.
[FR Doc. 02-445 Filed 1-7-02; 8:45 am]
BILLING CODE 4910-60-P