[Federal Register Volume 83, Number 236 (Monday, December 10, 2018)]
[Proposed Rules]
[Pages 63457-63460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26493]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 51

[Docket No: FR-6054-P-01]
RIN 2506-AC45


Conforming the Acceptable Separation Distance (ASD) Standards for 
Residential Propane Tanks to Industry Standards

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would modernize an existing regulation to 
reduce regulatory and cost burden on communities that may be restricted 
in their ability to site HUD-assisted projects, including those for 
low- and moderate-income housing, because of the presence of stationary 
aboveground liquefied petroleum gas (propane) storage tanks that may be 
nearby. Specifically, this proposed rule would allow the siting of HUD-
assisted projects near stationary aboveground propane storage tanks 
with a capacity of 250 gallons or less if the storage tank complies 
with National Fire Protection Association (NFPA) Code 58 (Liquefied 
Petroleum Gas Code) (2017). HUD proposes to incorporate, by reference, 
NFPA 58, a voluntary consensus standard for public safety that 
establishes standards used by the propane industry and operators 
regarding storage, handling, transportation, and use of propane. To 
ensure the continued safety of residents in HUD-assisted projects and 
communities, HUD would rely upon NFPA codes and standards, with which 
many states already comply.

DATES: Comment Due Date: February 8, 2019.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule. All communications must refer to the above docket 
number and title. There are two methods for submitting public comments.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW, Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make comments immediately available 
to the public. Comments submitted electronically through the 
www.regulations.gov website can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

    Note:  To receive consideration as public comments, comments 
must be submitted through one of the two methods specified above. 
Again, all submissions must refer to the docket number and title of 
the rule.

    No Facsimiled Comments. Facsimiled (faxed) comments are not 
acceptable.
    Public Inspection of Public Comments. Copies of all comments 
submitted are available for inspection and downloading at 
www.regulations.gov. In addition, all properly submitted comments and 
communications submitted to HUD will be available for public inspection 
and copying between 8 a.m. and 5 p.m., weekdays, at the above address. 
Due to security measures at the HUD Headquarters building, an advance 
appointment to review the public comments must be scheduled by calling 
the Regulations Division at 202-708-3055 (this is not a toll-free 
number). Individuals with speech or hearing impairments may access this 
number via TTY by calling the Federal Relay Service at 800-877-8339 
(this is a toll-free number).

FOR FURTHER INFORMATION CONTACT: Danielle Schopp, Director, Office of 
Environment and Energy, Office of Community Planning and Development, 
Department of Housing and Urban Development, 451 7th Street SW, 
Washington, DC 20410; telephone number 202-402-5226 (this is not a 
toll-free number). Persons with hearing or speech impairments may 
access this number through TTY by calling the Federal Relay Service at 
800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 10, 1984 (49 FR 5100), HUD published a final rule to 
minimize the possibility of loss of life and substantial property loss 
by establishing for HUD-assisted projects safety standards to calculate 
acceptable separation distances (ASD) from specific, stationary, 
hazardous operations that store, handle, or process hazardous 
substances, including

[[Page 63458]]

petrochemical products. HUD's standards, currently codified at 24 CFR 
part 51, subpart C, are based on the findings of studies conducted by 
the Department, one in 1975 and one in 1982.\1\ The effect of these 
standards is to withhold HUD approval of an application for assistance 
for projects located at less than a prescribed ASD from specific 
hazardous operations, unless appropriate mitigating measures are 
implemented. Substances deemed hazardous include petrochemical 
products, such as propane. HUD-assisted projects include the 
development, construction, rehabilitation, modernization, or conversion 
with HUD subsidy, grant assistance, loan, loan guarantee, or mortgage 
insurance of any project that is intended for residential, 
institutional, recreational, commercial, or industrial use.
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    \1\ Safety Consideration in Siting Housing Projects, prepared by 
Arthur D. Little Inc., 1975; and Urban Development Siting with 
Respect to Hazardous Commercial/Industrial Facilities, by Rolf 
Jensen and Associates Inc., 1982.
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    Mitigation measures can be costly and limit choices for siting a 
HUD-assisted project. Acceptable mitigation measures, as described in 
Sec.  51.205 and HUD guidance, include tank burial or building a blast 
wall.\2\ Tank burial is an involved process requiring costly 
construction procedures, and permit and design fees, especially in an 
urban environment. Similarly, constructing a blast wall or a barrier to 
surround the tank or a building structure on a HUD-assisted property's 
site to shield a proposed project from the hazard may be cost-
prohibitive and burdensome, because most of the propane tanks that 
affect HUD-assisted projects are located offsite on adjacent 
properties.
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    \2\ https://www.hud.gov/sites/documents/BARRIER_DESIGN_GUIDANCE.PDF.
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    HUD's experience has been that there are significant practical and 
economic difficulties in mitigating off-site residential propane tanks 
located on adjacent properties. For example, in the wake of Hurricane 
Katrina in 2008, HUD waived Sec.  51.202(a) to permit applications to 
be considered for the State of Mississippi's Small Rental Assistance 
and Long-Term Workforce Housing Programs, because the HUD-assisted 
projects would be less than the ASD to residential propane tanks as 
established by regulation. More recently, HUD was advised that 22.7 
percent of Vermont households are served by propane gas \3\ and that 
projects using HUD Community Development Block Grant and HOME 
Investment Partnerships assistance would require mitigation measures to 
comply with HUD's ASD regulation. To address this issue, HUD waived 
Sec.  51.202. In both waivers, HUD stated that propane tank compliance 
with National Fire Protection Association Code 58 (NFPA 58) mitigated 
any danger to HUD-assisted projects sited adjacent to the hazard.
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    \3\ This information was provided by the Vermont Department of 
Forests, Parks & Recreation.
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    Based on HUD's experience, HUD recognizes the need to streamline 
and update its current rule to allow the siting of HUD-assisted 
projects near stationary propane tanks that hold up to 250 gallons. 
HUD's determination that there exists a need to update this rule is 
also based on the advent of modern propane tank designs; updated fire 
safety codes, including NFPA 58; and the often cost-prohibitive nature 
of mitigation measures. This proposed rule would strike a more 
appropriate balance between safety and cost-effective measures to 
reduce regulatory burden across communities that need HUD-assisted 
projects.

II. This Proposed Rule

    Current HUD regulations at Sec.  51.202 provide that HUD will not 
approve an application for assistance for a proposed project located 
less than the ASD from a hazard unless appropriate mitigation measures 
(defined in Sec.  51.205) are implemented or in place. With two 
exceptions, a hazard is defined in Sec.  51.201 as ``any stationary 
container which stores, handles or processes hazardous substances of an 
explosive or fire prone nature.'' Propane is included in the definition 
of a ``hazardous gas.'' An ASD assessment is required for both blast 
overpressure (explosion) and thermal radiation (fire) for propane tanks 
near HUD-assisted projects. Where projects are less than the ASD from a 
propane tank, mitigation measures are required to protect outdoor 
areas, buildings, and their inhabitants from potential explosions and 
fires.
    This rule proposes to update the existing regulation concerning 
aboveground propane storage tanks by creating a new exception to the 
definition of ``hazard'' as set out in 24 CFR 51.201. While the current 
codified definition of ``hazard'' at Sec.  51.201 will remain unchanged 
for the most part, this proposed rule would except from the definition 
propane tanks of up to 250 gallons if the handling and storage of such 
tanks is compliant with NFPA 58 (2017). The rule proposes an exception 
for propane tanks up to 250 gallons. Typically, propane tanks up to 250 
gallons are used for residential purposes, including heating and 
cooking.
    NFPA 58 is a voluntary consensus standard and most states have 
adopted an edition of NFPA 58 into their state and local codes and 
regulations for propane tanks. HUD proposes to incorporate the 2017 
edition of NFPA 58 because this edition has documentation requirements 
for the addition of odorant and verification of its presence, which is 
a safety measure that older editions of NFPA 58 do not contain. While 
HUD proposes to incorporate NFPA 58 (2017), HUD welcomes comments from 
states that have adopted editions of NFPA 58 other than the 2017 
edition on how this proposed rule will affect them.
    Additionally, this proposed rule would explicitly codify HUD's 
longstanding policy that there is no need for an ASD between HUD-
assisted projects and underground containers. HUD has interpreted 
existing regulations to exempt belowground storage tanks, as the burial 
of hazardous materials is subject to state laws that ensure tanks are 
buried deeply enough so that the risk of fire or blast overpressure is 
sufficiently mitigated. As a result, belowground storage tanks fall 
within the existing exclusion for facilities shielded from proposed 
projects by the topography. Therefore, HUD wishes to explicitly clarify 
that all underground containers are similarly exempt from the 
definition of ``hazard.''
    HUD is proposing this rule to update its current regulation that 
was published in 1984 and which does not account for updated standards 
and technology. As discussed, the awareness of safety standards and 
tank designs have contributed to reducing the hazard of fire and 
explosion. HUD has determined, therefore, the risk posed by any 
stationary propane tank of up to 250 gallons is adequately addressed by 
NFPA 58 (2017), a widely used standard. When the current regulation was 
originally drafted, most of the new and updated safety features 
incorporated into industrial propane gas tanks did not exist. For a 
propane tank to comply with NFPA 58 (2017), specific safety precautions 
must be met. For example, the tank must be equipped with certain 
features, including a spring-loaded pressure relief valve, a cylinder 
foot ring, cylinder collar, and valve cover; the contents of the tank 
must be identified, including note of the date it was manufactured or 
recertified; and the tank must be in good condition and free of signs 
of specific wear and defects. HUD's proposed exception to the term 
``hazard'' will minimize the imposition of unjustified costs, saving 
HUD grantees the cost of constructing mitigation measures to address

[[Page 63459]]

residential propane tanks located on properties that do not meet the 
ASD.
    Overall, HUD proposes this action to reduce regulatory burden and 
cost and, at the same time, ensure the safety and health of residents.

III. Incorporation by Reference

    Before HUD issues a final rule, the reference standards proposed 
for incorporation will be approved by the Director of the Federal 
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. This 
rule proposes to incorporate the following voluntary consensus standard 
for siting of HUD-assisted projects near aboveground propane storage 
tanks that hold up to 250 gallons:
     NFPA 58 Liquefied Petroleum Gas Code (2017). The NFPA 
develops building, fire, and electrical safety codes and standards. 
Federal agencies frequently use these codes and standards as the basis 
for developing Federal regulations concerning safety. NFPA 58 provides 
industry benchmark and operational information and standards for safe 
propane storage, handling, transportation, and use. NFPA 58 mitigates 
risks and ensures safe installations, to prevent failures, leaks, and 
tampering that could lead to fires and explosions.
    This proposed rule would only incorporate the 2017 version of NFPA 
58. The rule cannot account for future editions of NFPA that do not yet 
exist. Therefore, if HUD wishes to revise the standard in the future to 
incorporate newer editions of NFPA 58, further rulemaking would be 
required.
    NFPA 58 (2017) is available online for review and comment during 
this rule's comment period, via read-only access, at NFPA link https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=58. Members of the public may visit the link 
and create a user name and password to view the free-access edition. 
The standard may also be obtained from the National Fire Protection 
Association at 1 Batterymarch Park, Quincy, Massachusetts 02269, 
telephone number 617-770-3000, fax number 617-770-0700.

IV. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made whether a regulatory action is significant 
and, therefore, subject to review by the Office of Management and 
Budget (OMB) in accordance with the requirements of the order. 
Executive Order 13563 (Improving Regulations and Regulatory Review) 
directs executive agencies to analyze regulations that are ``outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.'' Executive Order 13563 also directs that, where relevant, 
feasible, and consistent with regulatory objectives, and to the extent 
permitted by law, agencies are to identify and consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public.
    HUD has examined the economic, budgetary, legal, and policy 
implications of this action and has determined that this proposed rule 
is a significant regulatory action under section 3(f) of Executive 
Order 12866 (but not an economically significant action). HUD has 
prepared a cost benefit analysis that addresses the costs and benefits 
of the proposed rule. The cost analysis is part of the docket file for 
this rule.
    The docket file is available for public inspection at either 
www.regulation.gov or in the Regulations Division, Office of the 
General Counsel, Room 10276, 451 7th Street SW, Washington, DC 20410-
0500. Due to security measures at the HUD Headquarters building, please 
schedule an appointment to review the docket file by calling the 
Regulations Division at 202-402-3055 (this is not a toll-free number). 
Individuals with speech or hearing impairments may access this number 
via TTY by calling the Federal Relay Service at toll-free 800-877-8339.

Executive Order 13771

    Executive Order 13771, entitled ``Reducing Regulation and 
Controlling Regulatory Costs,'' was issued on January 30, 2017. This 
proposed rule is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the rule's economic analysis.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
organizations, and small governmental jurisdictions.
    The purpose of this proposed rule is to update a codified 
regulation to reduce regulatory and cost burden on communities that may 
be restricted in their ability to site HUD-assisted projects because of 
the presence of stationary aboveground propane storage tanks that may 
be nearby. Specifically, the rule proposes to allow the siting of HUD-
assisted projects near stationary aboveground propane storage tanks 
with a capacity of 250 gallons or less if the storage tank complies 
with the National Fire Protection Association (NFPA) Code 58 (Liquefied 
Petroleum Gas Code) (2017). HUD has determined that the rule, if 
implemented as proposed, would result in the reduction of costly 
mitigation measures. Savings are estimated to be from $100,000 to $4 
million per year and involve approximately 20 projects per year. 
Accordingly, the undersigned certifies that this rule would not have a 
significant economic impact on a substantial number of small entities.

Environmental Impact

    A Finding of No Significant Impact (FONSI) with respect to the 
environment has been made in accordance with HUD regulations at 24 CFR 
part 50, which implement section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is 
available for public inspection on www.regulations.gov.

Federalism Impact

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from promulgating a 
regulation that has federalism implications and either imposes 
substantial direct compliance costs on State and local governments and 
is not required by statute, or preempts State law, unless the relevant 
requirements of section 6 of the Executive order are met. This rule 
does not have federalism implications and does not impose substantial 
direct compliance costs on State and local governments or preempt State 
law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments, and on the private sector. This proposed rule would 
not impose any Federal mandates on any State, local, or tribal

[[Page 63460]]

governments, or on the private sector, within the meaning of UMRA.

List of Subjects in 24 CFR Part 51

    Airports, Hazardous substances, Housing standards, Incorporation by 
reference, Noise control.

    Accordingly, for the reasons stated in the foregoing preamble, HUD 
proposes to amend 24 CFR part 51 as follows:

PART 51--ENVIRONMENTAL CRITERIA AND STANDARDS

0
1. The authority citation for 24 CFR part 51 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d), unless otherwise noted.

0
2. In Sec.  51.200, revise the heading, designate the introductory text 
as paragraph (a), redesignate paragraphs(a) through (e) as paragraphs 
(a)(1) through (a)(5), and add new paragraph (b) to read as follows:


Sec.  51.200  Purpose and Incorporation by Reference.

    (a) The purpose of this subpart C is to:
* * * * *
    (b) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. All approved material is available for 
inspection at HUD's Office of Environment and Energy, 202-402-5226, and 
from the sources indicated below. It is also available for inspection 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or visit www.archives.gov/federal-register/cfr/ibr-locations.html. 
Persons with hearing or speech impairments may access the numbers above 
through TTY by calling the Federal Relay Service, toll-free, at 800-
877-8339.
    (1) National Fire Protection Association, 1 Batterymarch Park, 
Quincy, Massachusetts 02269, telephone number 617-770-3000, fax number 
617-770-0700, www.nfpa.org.
    (i) NFPA 58: Liquefied Petroleum Gas Code (2017), IBR approved for 
Sec.  51.201.
    (ii) [Reserved]
    (2) [Reserved]
0
3. In Sec.  51.201, revise the definition of ``Hazard'' to read as 
follows:


Sec.  51.201  Definitions.

* * * * *
    Hazard--means any stationary container which stores, handles, or 
processes hazardous substances of an explosive or fire prone nature. 
The term ``hazard'' does not include:
    (1) Pipelines for the transmission of hazardous substances, if such 
pipelines are located underground, or comply with applicable Federal, 
State and local safety standards;
    (2) Containers with a capacity of 100 gallons or less when they 
contain common liquid industrial fuels, such as gasoline, fuel oil, 
kerosene and crude oil, since they generally would pose no danger in 
terms of thermal radiation or blast overpressure to a project;
    (3) Facilities that are shielded from a proposed HUD-assisted 
project by the topography, because these topographic features 
effectively provide a mitigating measure already in place;
    (4) All underground containers; and
    (5) Containers designed to hold liquefied propane gas with a 
volumetric capacity not to exceed 250 gallons, if they comply with the 
NFPA 58 (incorporated by reference, see Sec.  51.200(b)).
* * * * *

    Dated: October 18, 2018.
Neal J. Rackleff,
Assistant Secretary for Community Planning and Development.
[FR Doc. 2018-26493 Filed 12-7-18; 8:45 am]
 BILLING CODE 4210-67-P