97-21865. Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Revisions and Response to Petitions for Reconsideration

[Federal Register Volume 62, Number 159 (Monday, August 18, 1997)]
[Rules and Regulations]
[Pages 44038-44058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21865]

[[Page 44037]]

_______________________________________________________________________

Part II

Department of Transportation

_______________________________________________________________________

Research and Special Programs Administration

_______________________________________________________________________

49 CFR Part 171, et al.

Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed
Gas Service; Revisions and Response to Petitions for Reconsideration;
Final Rule

Hazardous Materials: Safety Standards for Unloading Cargo Tank Motor
Vehicles in Liquefied Compressed Gas Service; Advance Notice of
Proposed Rulemaking; Proposed Rule

Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules
and Regulations

[[Page 44038]]

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket No. RSPA-97-2133 (HM-225)]
RIN 2137-AC97

Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service; Revisions and Response to Petitions for
Reconsideration

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

ACTION: Final rule; response to petitions for reconsideration.

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

SUMMARY: RSPA is revising and extending requirements issued in an
interim final rule (IFR) on February 19, 1997. Revisions are being made
to address commenters' concerns particularly in the area of operator
attendance requirements and to improve safety. The rule adopts
temporary requirements for cargo tank motor vehicles in certain
liquefied compressed gas service. It requires a specific marking on
affected cargo tank motor vehicles and requires motor carriers to
comply with additional operational controls intended to compensate for
the inability of passive emergency discharge control systems to
function as required by the Hazardous Materials Regulations. The
interim operational controls specified in this rule will improve safety
while the industry and government continue to work to develop a system
that effectively stops the discharge of hazardous materials from a
cargo tank if there is a failure of a transfer hose or piping.
These operational controls are necessary because a substantial
portion of the industry failed to comply with an important excess flow
requirement, which has been in place since 1941, and has failed to
comply with the IFR. Because of this widespread non-compliance, RSPA
also published in today's Federal Register an advance notice of
proposed rulemaking (ANPRM) soliciting data to serve as a basis for
future rulemaking. This advance notice addresses a number of other
issues, including the ability of industry to meet a possible 1-, 2- or
3-year retrofit schedule; standards for the qualification, testing and
use of hoses used in unloading; safety procedures for persons
performing unloading operations; and, whether the Federal government
should continue to regulate in this area.

EFFECTIVE DATE: August 16, 1997.

FOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of
Hazardous Materials Technology, RSPA, Department of Transportation, 400
Seventh Street, S.W., Washington, DC 20590-0001, telephone (202) 366-
4545, or Nancy Machado, Office of the Chief Counsel, RSPA, Department
of Transportation, 400 Seventh Street, S.W., Washington, DC 20590-0001,
telephone (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

Among the liquefied compressed gases most commonly transported
throughout the nation in DOT specification cargo tank motor vehicles
are petroleum gases, anhydrous ammonia and chlorine. The risk of
personal injury due to accidental releases is high for each of these,
and, in the case of propane, the additional threat of fire and
explosion must be considered. When liquid propane is released into the
atmosphere, it quickly vaporizes into the gaseous form which is its
normal state at atmospheric pressure. This happens very rapidly, and in
the process, the propane combines readily with air to form fuel-air
mixtures which are ignitable over a range of 2.2 to 9.5 percent by
volume. If an ignition source is present in the vicinity of a highly
flammable mixture, the vapor cloud ignites and burns very rapidly
(characterized by some experts as ``explosively'').
Since September 8, 1996, renewed attention was focused on the
dangers of propane when more than 35,000 gallons were released during
delivery to a bulk storage facility in Sanford, North Carolina.
Fortunately, ignition did not occur. This incident led to the issuance
of a safety advisory notice on December 13, 1996 (61 FR 65480), and an
interim final rule (IFR) on February 19, 1997 (62 FR 7638). However,
concerns over controlling the unintended release of hazardous materials
have been expressed for decades.

B. Emergency Discharge Controls

Operations involving the transfer of liquid and gaseous hazardous
materials to, from, or between bulk packagings, such as cargo tank
motor vehicles, are recognized as posing a significant threat to life
and property in transportation. For that reason, the Hazardous
Materials Regulations (HMR; 49 CFR parts 171-180) place special
emphasis on emergency discharge controls, including requirements for
excess flow valves and internal self-closing stop valves that close
automatically upon sensing a line separation. Additionally, the HMR
require a mechanical and/or thermal means of activating the internal
self-closing stop valve. The effectiveness of these properly installed
and maintained safety appliances in safeguarding life and property at
the critical moment of an unintentional release of extremely hazardous
materials is well demonstrated and has historically been widely
recognized by representatives of industry, emergency response
organizations, and other affected parties.
In the case of specification MC 330 and MC 331 cargo tank motor
vehicles authorized for the transportation of certain liquefied
compressed gases, Federal requirements for emergency discharge controls
first appeared as regulations issued by the Interstate Commerce
Commission (ICC) on November 8, 1941, in Docket 3666. Requirements
applicable to specification MC 320 cargo tank motor vehicles and ICC
specification MC-7.6-S-1.2 have been modified slightly by RSPA over the
years, but essential elements of the regulations pertaining to excess
flow valves and internal self-closing stop valves are unchanged. This
rule applies also to provisions for secondary remote controls and for
fusible links, which cause the internal valve to close automatically in
case a cargo tank is involved in a fire. Again, related requirements in
the HMR today share the same essential elements as those originally
ordered over fifty years ago.
Section 178.337-8(a) states ``* * * each opening in a cargo tank
intended for use in transporting compressed gas (except carbon dioxide,
refrigerated liquid) must be--(i) closed with a plug, cap or bolted
flange; (ii) protected with an excess flow valve on product discharge
openings or protected with a check valve on product inlet openings; or
(iii) fitted with an internal self-closing stop valve as specified in
Sec. 178.337-11(a).'' Currently, most specification MC 330 and MC 331
cargo tank motor vehicles are fitted with an internal self-closing stop
valve which incorporates an excess flow feature. However, the
requirement in Sec. 178.337-11(a)(1)(i), that ``each self-closing stop
valve and excess flow valve must automatically close if any of its
attachments are sheared off or if any attached hoses or piping are
separated,'' can be met by manufacturers and operators of specification
MC 330 and MC 331 cargo tank motor vehicles using internal self-closing
stop valves which have no excess flow feature. The key requirement is
that the discharge valve must automatically close if any of its

[[Page 44039]]

attachments are sheared off or if any attached hoses or piping are
separated. Any other equipment, such as a system which measures a
differential in pressure, a pressure drop, or a hose or piping
separation, which automatically closes the internal self-closing stop
valve on the cargo tank and stops the discharge of product in the event
of the separation or rupture of a hose or piping may be used to meet
the emergency discharge control system performance requirement
specified in Sec. 178.337-11(a)(1)(i).
Unloading With a Liquid Pump System
While it seems that the HMR's longstanding requirements should be
well understood and fully complied with by the affected industries,
unfortunately that is not the case. Instead, efforts undertaken by the
affected industries 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 of
transportation. The installation of pumps on specification MC 330 and
MC 331 cargo tank motor vehicles has been accompanied by the industry's
installation of internal self-closing stop valves with an emergency
feature designed to function at a flow rating well above the discharge
capacity of the pump. This assures transfer of product without
interruption by inadvertent functioning of the emergency discharge
control system. As presently found in most product discharge system
configurations, a pump functions as a regulator in the product
discharge line so as to eliminate any possibility that the emergency
discharge control system will function in event of a line separation.
Also, it has been pointed out by Mississippi Tank Company that even on
cargo tank discharge systems not fitted with pumps, the emergency
discharge control system on most LPG vehicles would fail to properly
operate under all temperatures and pressures routinely encountered
during normal conditions of transportation. The National Propane Gas
Association (NPGA) in 1978 and 1990, issued bulletins NPGA #113-78 and
NPGA #113-90, which state:

Excess flow check valves have been of help in limiting gas loss
in many incidents involving breakage of hoses and transfer piping.
Thus, they do provide a useful safety function in LP-gas systems.
However, there have also been transfer system accidents where excess
flow valves have been ineffective in controlling gas loss due to a
variety of conditions and to the inherent limitations of these
valves * * * An excess flow valve is not designed to close and thus
may not provide protection, if any of the following conditions are
present: (1) The piping system restrictions (due to pipe length,
branches, reduction in pipe size, or number of other valves)
decrease the flow rate to less than the valve's closing flow * * *
(Emphasis added).

This information demonstrates that the industry has been aware,
since at least 1978, that excess flow valves are not designed to
function where piping system restrictions (e.g., pumps) decrease the
flow rate to less than the excess flow valve's closing flow. Also, the
industry has information regarding ``many'' incidents involving hose
and transfer separation and other transfer system accidents, but this
information has not been shared with RSPA despite numerous requests.
Pressure Unloading
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.

C. History of Major Incidents

The hazards associated with the transportation of liquefied
petroleum gas have been demonstrated repeatedly on U.S. highways. Based
on information contained in the Hazardous Materials Information System,
propane releases are a leading cause of death in hazardous material
transportation. A summary of major incidents over the years is
presented below. Most of these incidents were the result of collisions
rather than due to unintended release of lading during transfer
operations. However, each incident demonstrates the potential for grave
consequences which result when liquefied petroleum gases are spilled
and ignition occurs.
On July 25, 1962, in Berlin, New York, an MC 330 bulk
transport ruptured releasing about 6900 gallons of liquid propane.
Ignition occurred. Ten persons were killed and 17 others were injured.
Property damage included total destruction of 18 buildings and 11
vehicles.
On February 9, 1972, in Tewksbury, Massachusetts, while an
MC 330 bulk transport was unloading 8500 gallons of propane into two
60,000 gallon storage tanks at a Lowell Gas terminal, a second bulk
transport backed into piping at the bulkhead of the unloading terminal
causing a propane leak. Ignition occurred. In the ensuing fire, one of
the transports exploded. Two persons were killed and 21 others were
injured. Property damage included both transports, a large portion of
the operating facility and surrounding woodland.
On March 9, 1972, near Lynchburg, Virginia, an MC 331 bulk
transport overturned and slid into a rock embankment. The impact
ruptured the tank's shell, releasing about 4000 gallons of liquid
propane. Ignition occurred. Two persons were killed and five others
were injured. There was property damage to a farmhouse, outbuildings
and about 12 acres of woodland.
On April 29, 1975, near Eagle Pass, Texas, an MC 330 bulk
transport struck a concrete headwall and ruptured releasing more than
8000 gallons of liquefied petroleum gas. The ensuing fire and explosion
killed 16 persons, injured 51 others and destroyed 51 vehicles.
On December 23, 1988, in Memphis, Tennessee, an MC 330
bulk transport struck a bridge abutment and ruptured releasing 9388
gallons of liquefied propane gas. The ensuing fire and explosion killed
eight persons and injured eight others.
On November 29, 1989, in Neptune Beach, Florida, while
propane was being delivered to storage tanks at the Neptune Beach
Elementary School, an unintentional release of propane ignited. In the
resulting explosion and fire, the driver was badly burned and
subsequently died.
On July 27, 1994, in White Plains, New York, an MC 331
bulk transport struck a column of an overpass and ruptured, releasing
9200 gallons of propane. Ignition occurred. The driver was killed, 23
persons were injured and an area within a radius of 400 feet was
engulfed in fire.
On September 8, 1996, in Sanford, North Carolina, during
delivery of propane to a bulk storage facility by an MC 331 bulk
transport, more than 35,000 gallons of propane were released. The
discharge hose separated from its hose coupling at the delivery end of
the hose. Most of the transport's 9800 gallons of propane and more than
30,000 gallons from the storage tanks were released. If this quantity
of released propane ignited, local

[[Page 44040]]

authorities estimated that about 125 emergency response personnel could
have been injured or killed.
On June 3, 1997, in Caro, Michigan, while unloading
propane into a storage tank at an industrial facility, the delivery
hose of an MC 331 transport ruptured. The ensuing fire and a series of
explosions seriously burned the driver, destroyed four vehicles and
extensively damaged the facility. Initial estimates of property damage
are at least $2.0 million.
Two additional examples of serious accidents involving shipments of
liquid petroleum gas are noteworthy. In what many consider the world's
most serious incident involving a motor vehicle transporting liquid
petroleum gas, on July 11, 1978, an overfilled cargo tank passing near
a campground in Spain exploded and burned. About 200 persons were
killed and 120 were badly burned. And, although no motor vehicles were
involved, another major accident occurred on February 22, 1973, in
Waverly, Tennessee, when a 30,000 gallon railroad tank car exploded and
burned. Sixteen persons were killed, 43 others were injured and $1.8
million of property damage resulted.
The history of major accidents in the transportation of anhydrous
ammonia is similar to that involving the transportation of liquefied
petroleum gases. Pulmonary injuries are more significant with ammonia
while fire damage is more significant with liquefied petroleum gases.
An example of a major accident involving the release of ammonia is an
incident that occurred May 11, 1976, in Houston, Texas. The driver of
an MC 331 transport lost control while negotiating an interstate exit
ramp. The cargo tank motor vehicle overturned and fell from the
overpass onto a major artery some 15 feet below. The cargo tank
ruptured, releasing its entire cargo of 7500 gallons of anhydrous
ammonia. The driver was killed in the crash. An additional five persons
were killed and 78 others were hospitalized, all due to inhalation of
ammonia. Another 100 persons were treated for less severe injuries.
Favorable wind conditions prevented the vapor cloud from reaching a
nearby elementary school.

D. RSPA Safety Advisory Notice and Federal Highway Administration
(FHWA) Safety Alert Bulletin

Based on preliminary information from the Sanford incident, RSPA
published an advisory notice in the Federal Register on December 13,
1996 (61 FR 65480). That notice alerted persons involved in the design,
manufacture, assembly, maintenance or transportation of hazardous
materials in MC 330 and MC 331 cargo tank motor vehicles of the problem
with emergency discharge control systems and reminded them that these
tanks and their components must conform to the HMR. At the same time,
FHWA issued and distributed 16,000 copies of a Safety Alert Bulletin on
this issue.

E. Emergency Exemption Applications

On December 2, 1996, and December 18, 1996, RSPA received
applications for emergency exemptions from the Mississippi Tank Company
and the NPGA, respectively, indicating the problem with cargo tank
motor vehicle emergency discharge systems was more extensive than
originally believed. Additionally, The Fertilizer Institute (TFI) and
National Tank Truck Carriers, Inc. (NTTC) submitted applications to
become party to these exemptions. In support of its exemption
application, the Mississippi Tank Company, a manufacturer of
specification MC 331 cargo tank motor vehicles, provided preliminary
information that there is reason to suspect the problem is common to
nearly all cargo tank motor vehicles used in liquefied compressed gas
service within the U.S. This problem is also thought to exist in the
non-specification cargo tanks authorized in Sec. 173.315(k).
In their requests for emergency exemption, the applicants asked the
agency to issue an exemption to allow the continued use of existing
cargo tank motor vehicles and the conditional operation of newly
constructed cargo tank motor vehicles while a long-term solution to the
problem is developed. NPGA suggested that long-term solutions might
include pneumatic or mechanical ``deadman'' devices, possibly combined
with a lanyard for remote activation, or the use of a differential
pressure valve.
NPGA proposed that the emergency exemption require: (1) Compliance
with applicable provisions of the HMR other than Secs. 173.315(n),
178.337-11(a)(1)(i) and 178.337-11(a)(1)(v); (2) an outreach effort by
NPGA to notify members of the Sanford, North Carolina incident and
related, identified concerns; (3) transfer hose inspection before
continued use and new hose inspection as required under the HMR; (4)
compliance with applicable provisions of the National Fire Protection
Association (NFPA) pamphlet NFPA 58, Storage and Handling of Liquefied
Petroleum Gases, 1995 edition; (5) continual driver attendance and
control of the loading/unloading operations; and (6) driver training.
Mississippi Tank Company proposed that the emergency exemption require
a warning statement and/or special operating instructions.
Both applicants stressed the urgent need for an expedited response
from RSPA. Mississippi Tank indicated that an emergency exemption was
needed ``to allow the continued use of existing equipment and to allow
badly needed new equipment to continue to be made available to the
industry.'' In the section of its application entitled ``Treatment as
an Emergency Exemption,'' NPGA indicated that the propane industry was
in the midst of the winter heating season, that over 80 percent of the
7-9 billion gallons of propane delivered annually was to be used as a
residential heating fuel, and that all of the existing cargo tanks were
needed to deliver the heating fuel for residential and agricultural
purposes. In further support of its argument that an emergency existed,
NPGA also stated that ``the ability to be able to operate propane
bobtails and highway transports has so many impacts and is so pervasive
as to be almost incalculable from an economic impact viewpoint.'' NPGA
concluded its application by stating that ``a true emergency exists for
handling this Exemption request in an expedited manner * * *''
After evaluating the facts before it, and the NPGA's and
Mississippi Tank Company's emergency exemption applications, RSPA
agreed that an emergency existed. However, the agency denied the
applications for emergency exemption on January 13, 1997, because they
failed to provide for an equivalent level of safety as required by
Sec. 5117 of the Federal hazardous materials transportation law, 49
U.S.C. Sec. 5117, and 49 CFR 107.113(f)(2). Also, RSPA found that the
issues addressed in the applications have serious safety and economic
implications for a broad range of persons, including a significant
number of regulated entities facing a possible interruption in
transportation services because of widespread non-conformance with the
HMR's requirement for a passive emergency discharge control system.
Consequently, RSPA believed that the issues raised by the applicants
were better addressed through the rulemaking process. See 49 CFR
107.113(i). Thus, RSPA published the IFR because of the emergency
situation described by NPGA and Mississippi Tank Company in their
applications for emergency exemption, and the applicants' requests for
expedited relief.

F. The Interim Final Rule

The IFR was issued to enhance safety of product transfer operations
while allowing for the continued

[[Page 44041]]

transportation of liquefied compressed gases (principally propane,
other liquefied petroleum gases and anhydrous ammonia). The IFR was
made effective for a six-month period, until August 15, 1997, to allow
industry time to develop at least an interim solution to the problem
with emergency discharge control systems. RSPA and the FHWA believed
that, without the authorization for continued operation provided by the
IFR, persons who depend on propane and other liquefied compressed gases
for residential, industrial, and agricultural purposes, as well as
cargo tank motor vehicle operators and manufacturers, would be severely
impacted by service interruptions in these industries. Because there
are no acceptable alternatives for distributing these materials to most
residences and facilities served by cargo tank motor vehicles, RSPA and
FHWA believed the IFR was necessary to avoid other potentially serious
safety and economic consequences that might have resulted from an
inability to secure these essential materials.
In order to enhance the level of safety during transfer operations
using current equipment, the IFR specified special conditions for
continued operations in new Sec. 171.5. These conditions offered an
alternate means of compliance with existing emergency discharge
controls required by Sec. 178.337-11. Those conditions included:
Paragraph (a)(1). Use provisions under which MC 330, MC 331, and
non-specification cargo tank motor vehicles authorized under
Sec. 173.315(k) may be operated and unloaded.
Paragraph (a)(1)(i). A requirement to verify the integrity of
components making up the cargo tank motor vehicle's discharge system
before initiating any transfer.
Paragraph (a)(1)(ii). A requirement that prior to using a new or
repaired transfer hose or a modified hose assembly, the hose must be
pressure tested at no less than 80 percent of the design pressure or
maximum allowable working pressure (MAWP) marked on the cargo tank.
Paragraph (a)(1)(iii). A requirement that a qualified person in
attendance of the cargo tank motor vehicle during the unloading
operation must have the capability to manually activate the emergency
discharge control system to stop the release of the hazardous material
from the cargo tank.
Paragraph (a)(1)(iv). A requirement that in event of an
unintentional release of lading, the internal self-closing stop valve
be activated and all motive and auxiliary power equipment be shut down.
Paragraph (a)(1)(v). A requirement for the development, and
maintenance on the cargo tank motor vehicle, of comprehensive emergency
operating procedures for all transfer operations.
Paragraph (a)(1)(vi). A requirement that each manufacturer,
assembler, retester, motor carrier and other hazmat employer provide
training to its hazmat employees so that they may properly perform the
new function-specific requirements in Sec. 171.5.
Paragraph (a)(2). Conditions for continued qualification of
existing in-service cargo tank motor vehicles.
Paragraph (a)(3). Requirements for new vehicles, including a
special entry on the Certificate of Compliance required by
Sec. 178.337-18.
Paragraph (b). A requirement for a specific marking to be displayed
on each cargo tank motor vehicle operating under Sec. 171.5.
Paragraph (c). An August 15, 1997 expiration date for this
temporary regulation.
The IFR, and a subsequent notice in the Federal Register, advised
of two public meetings and two public workshops scheduled to gather
information and allow comment on the IFR requirements. In the IFR, RSPA
also solicited comments and data on the costs and effectiveness of
alternate means of achieving a level of safety for the long-term
comparable to that provided by current requirements. Finally, RSPA
solicited comments on the costs and benefits of the interim measures
adopted under the IFR.
As the investigation of the Sanford incident proceeded, it became
apparent that certain assumptions made both by RSPA and FHWA and by
parts of the industry were invalid regarding the emergency discharge
control systems. These systems were previously thought to conform to
requirements of Sec. 178.337-11(a)(1)(i) established under Docket HM-
183 [54 FR 24982; June 12, 1989]. Both the NPGA and TFI quickly set up
special task forces to deal with the shortcomings of existing product
delivery systems.
Since mid-December 1996, and while maintaining close liaison with
RSPA and FHWA, much has been accomplished by industry. For example,
off-the-shelf radio remote control and telemetry equipment has been
identified which, with relatively simple modifications, may be used to
stop the delivery of product from a distance while meeting requirements
for ``unobstructed view'' in Sec. 177.834(i)(3) of the HMR. This
equipment has been in use for many years in various industrial
applications. Similarly, several manufacturers have developed other
promising radio remote control systems aimed at this problem; some of
these have been demonstrated and are currently being marketed by
equipment suppliers serving the propane industry.
Additionally, some manufacturers have demonstrated systems capable
of automatically closing discharge valves in the event of separation of
hoses or piping. The range of conditions under which these systems can
be counted on to offer reliable operation for liquefied compressed
gases has not been determined as yet, and additional field testing is
called for, but the accomplishments to date are encouraging.
During the two public meetings and two public workshops, RSPA and
industry explored possible long- and short-term solutions to enhance
the safety of product transfer operations. RSPA also worked with the
Volpe National Transportation Systems Center to identify off-the-shelf
technology that might offer possible solutions, and TFI engaged the
Pennsylvania Transportation Institute to conduct related research.
Also, RSPA and FHWA staff participated in several industry-sponsored
meetings and witnessed the demonstration of new technologies being
developed to enhance safety during the unloading of hazardous materials
from MC 330 and MC 331 cargo tank motor vehicles. As a result of these
joint efforts, industry developed and tested at least two passive
systems and several remote control systems using radio signals, all of
which show great promise. Several operators have installed these
devices on a limited number of cargo tank motor vehicles in order to
test them in actual operation.

G. Petitions for Reconsideration

On March 21, 1997, RSPA received a petition for reconsideration of
the IFR from the NPGA, on behalf of its members, and a petition for
reconsideration jointly filed by Ferrellgas, L.P., Suburban Propane,
L.P., AmeriGas Propane, L.P., Agway Petroleum Corporation and
Cornerstone Propane Partners, L.P. (Those petitions are attached, in
their entirety, as Appendices A and B, respectively.) Petitioners
specifically requested that RSPA reconsider the additional attendance
requirement in Sec. 171.5(a)(1)(iii), which they contend effectively
mandates that two or more attendants travel to and be present during
the unloading of propane gas from a cargo tank motor vehicle. They
assert that the high cost of compliance with the additional requirement
is not

[[Page 44042]]

supported by the safety record for propane gas delivery, and they
provided some cost and safety data to support their views.
A significant number of commenters to the IFR raised issues
regarding cost and safety identical to those raised by petitioners.
Numerous commenters cited compliance cost estimates that they
considered excessive, based on their assertion that they have long
operated cargo tank motor vehicles without experiencing problems with
the currently installed emergency discharge control systems. These same
issues were among the topics raised by participants in the two public
meetings and the two public workshops conducted by RSPA.
In its petition, NPGA also asked for an immediate stay of the
additional attendance requirement pending a decision on its petition.
Ignoring statements made in its emergency exemption application, NPGA's
request for a stay was based on its assertion that an emergency did not
exist and, therefore, that RSPA was not justified in foregoing notice
and comment before immediately imposing new requirements. NPGA further
argued that because RSPA should have issued a notice of proposed
rulemaking (NPRM) prior to imposing new requirements, the agency should
have done a full economic analysis of the effect of the new
requirements on small businesses, as required under the Regulatory
Flexibility Act, 5 U.S.C. 601-612.
In order not to prejudge the additional attendance requirement
issue before all interested parties had an opportunity to comment on
the IFR requirements, RSPA did not respond to the petitions for
reconsideration prior to the close of the IFR comment period. Also,
because of the fast-approaching expiration date of the IFR, the need to
take further regulatory action to ensure an acceptable level of safety
during the transportation, including unloading, of liquefied compressed
gases, and the identical nature of the issues raised by petitioners and
commenters alike, RSPA found that it was impractical to make a decision
on the petitions for reconsideration prior to issuance of this final
rule. On June 9, 1997, RSPA published a notice in the Federal Register
(62 FR 31363) announcing its intent to defer a decision on the
petitions for reconsideration of the IFR and to hold a second public
meeting at industry's request. RSPA indicated that it would address the
issues raised by petitioners and commenters regarding the IFR
requirements in a final rule that it intended to issue prior to the
expiration date of the IFR. RSPA also indicated in that notice that
after publication of the final rule, it intended to issue an NPRM to
address broader issues raised during the course of this rulemaking,
including the ``unobstructed view'' requirement in Sec. 177.834(i) and
the need for hose management program requirements.
A significant basis for RSPA's finding that an emergency exists is
NPGA's and Mississippi Tank Company's assertions of the urgent need for
propane as a fuel for heating homes and agricultural facilities, as
well as the potentially serious adverse financial impacts on propane
marketers, propane producers, common carriers, vehicle assemblers and
equipment manufacturers. As RSPA noted in the IFR, ``After evaluating
the situation and the NPGA and Mississippi Tank Company emergency
exemption applications, RSPA finds that this situation constitutes an
emergency with broad applicability to many persons and far reaching
safety and economic impacts.'' (62 FR at 7644). Indeed, NPGA stated
that the operation of the affected cargo tank motor vehicles has
impacts ``almost incalculable from an economic standpoint,'' and that
an interruption of service by the industry would pose safety risks to
the large number of people in rural areas who depend on propane as fuel
for heating and cooking. The finding by RSPA that an economic and
safety emergency exists led the agency to issue the IFR in order to
provide industry with an immediate means of compliance with the HMR,
thereby avoiding an interruption of service and the resulting economic
and safety impacts described by the petitioners.
Because RSPA did not issue an NPRM in this rulemaking, it was not
required under the Regulatory Flexibility Act, 5 U.S.C. 601-612, to do
a full regulatory flexibility analysis regarding the impact of the IFR
on small entities.
As RSPA stated in the IFR:

In the IFR, RSPA also asked a series of questions intended to
elicit economic, safety and technical data for use in the preparation
of a final regulatory evaluation. A discussion of the economic impacts
of this rule appears below and in the final regulatory evaluation that
is available in the public docket.

II. Issues and Comments

RSPA received over 90 comments on the provisions specified in the
IFR. These comments were from Members of Congress, trade associations,
marketers, carriers, and State and local agencies. All comments,
including late submissions and comments made at the meetings and
workshops, were considered by RSPA to the extent practicable. Most
commenters stated that they could comply with the provisions of the
IFR, except for those provisions requiring the person attending the
unloading to have an unobstructed view of the discharge system, and be
within arm's reach of a means for closure of the internal self-closing
stop valve or other device that will immediately stop the discharge of
product from the cargo tank. (See Sec. 171.5(a)(1)(iii)). While the
affected industries expressed their interest in working with RSPA to
develop systems and procedures that assure safe unloading of hazardous
materials from the MC 330 and MC 331 cargo tank motor vehicles in every
circumstance, the propane industry adamantly opposes these particular
elements of the IFR which it characterizes as being neither
practicable, reasonable, nor in the public interest. Specifically, the
NPGA estimated annual costs of $660 million to its member companies in
order to comply with the attendance requirement in the IFR. This cost

[[Page 44043]]

estimate is attributed largely to the NPGA's understanding that a
literal interpretation of the rule effectively requires at least two,
and possibly three, operators for each unloading operation. NPGA
explained that, in addition to the current operator who attends to the
delivery of propane at the receiving tank, a second operator would be
required to be under the truck to observe the piping and a third
operator would be required at the remote control on the internal valve
in order to have all the discharge system in view during the transfer
operation. If a third operator were actually required, as hypothesized,
the NPGA contends the cost of compliance would double to $1.32 billion.
The $660 million estimate of annual costs calculated by NPGA
results from a misreading of the rule. In the preamble to the IFR, RSPA
set forth several options for complying with ``the unobstructed view''
and ``arm's reach'' requirements. In that discussion, RSPA stated
``(u)ntil an automatic flow control system is developed, this may
require two operator attendants on a cargo tank motor vehicle or the
use of a lanyard, electro-mechanical, or other device or system to
remotely stop the flow of product.'' (62 FR at 7643).
The cost of various alternatives was analyzed by RSPA in the
preliminary regulatory evaluation prepared in support of the IFR. Where
two operators would be required, RSPA estimated additional annual costs
in the amount of $237 million. RSPA recognized the cost estimate as
being so great as to effectively eliminate the two-person method of
compliance from consideration as a feasible alternative. RSPA
subsequently assessed the NPGA's suggested use of a lanyard and that
resulted in the significantly lower estimate of costs of compliance of
$12.5 million. Therefore, the lanyard system and equally efficient
means of achieving compliance with the IFR were determined by RSPA to
be among the common-sense approaches that could be taken by industry to
permit its continued operation of the non-conforming cargo tank motor
vehicles.
The NPGA then contrasted its extremely high estimate of costs to
comply with the arm's reach and unobstructed view provisions of the IFR
with the comparatively low estimate of $322,192 to $1.5 million in
annual benefits to society calculated by RSPA in the preliminary
regulatory evaluation. RSPA calculated those benefits on the basis of
sixteen actual incidents contained in the Hazardous Materials
Information Reporting System database that occurred between 1990-1996.
The approach taken by RSPA was an attempt to determine the average cost
of each gallon of propane unintentionally released to the environment
so it might be used to compare the estimated cost-per-gallon price
increase attributed to the IFR that likely would be passed on to the
ultimate consumer of propane. The costs to society of each gallon of
propane spilled was estimated in a range of $115.98 to $547.41, or
$0.00164 per gallon of propane unloaded from cargo tank motor vehicles.
When RSPA compared these costs to the calculated additional costs of
compliance, the decision to apply temporary operational controls
contained in the IFR was fully justified and quite reasonable. When
RSPA considered further the potential threats to life and property
posed by plausible accident scenarios, such as the possible
consequences that may have occurred in Sanford, NC, had the spilled
propane ignited, the reasonableness of the temporary rules became even
more apparent.
Numerous comments submitted by small propane dealers serving
agricultural interests in the midwestern United States cited an
estimate of approximately $2,500 per vehicle to replace non-performing
(defective) emergency discharge control systems with a fully
operational passive shut-off system. They claimed this cost is
excessive and unnecessary, especially considering that none of those
commenters had ever experienced a failure of the emergency discharge
control system to function properly. Related comments suggested that
these small businesses accepted in good faith claims made by equipment
manufacturers that their cargo tank motor vehicles met all technical
requirements of the HMR. Furthermore, those commenters claimed they
should not be penalized for equipment deficiencies that they could not
reasonably be expected to identify through an independent evaluation.
Some conclude by suggesting that RSPA should require persons that
completed the certificate of compliance for each cargo tank motor
vehicle to bear the cost of a retrofit, following the example of the
National Highway Traffic Safety Administration in ordering automobile
manufacturers to correct identified safety defects.
RSPA does not agree with the commenters' reasoning that, because it
was only recently determined that most of the affected cargo tank motor
vehicles do not conform to a long-standing safety requirement, the
agency should accept the status quo as the officially recognized
standard for safety. As indicated earlier in this preamble, the need
for and value of fully operational emergency discharge controls is
undisputed. Actual threats to life and property posed during the
unloading of liquefied compressed gases demand that RSPA require
compliance with a performance standard that appears to be reasonably
achievable through technological innovations that are now undergoing
field tests.

A. Barriers to Compliance

A number of motor carriers noted practical barriers to their full
compliance with requirements in the interim final rule. One problem
concerns the regulatory requirement that the operator be within arm's
reach of a means for closure of the internal self-closing stop valve
while operational necessity sometimes calls for the operator to enter
the vehicle's cab in order to engage the power take-off for the pump.
For large capacity trailers, (e.g., those with a nominal capacity of
10,500 gallons), those controls are normally accessible only from the
vehicle operator's position in the truck tractor. A few operators
reported that while most bobtail trucks have the controls mounted on
the rear deck of the vehicle, unloading controls for some bobtail
trucks also are located in the vehicle cab. Thus, these operators
claimed the need for two operators.
With respect to retail deliveries of propane to residential and
industrial customers, numerous commenters noted that the operator is
most frequently located at the delivery end of the hose which may be
100 feet, or farther, from the vehicle. Additionally, these commenters
noted that it is not unusual for the receiving tank to be located in a
position that prohibits the operator from having an unobstructed view
of the cargo tank motor vehicle, as required by Sec. 177.834(i)(3). The
commenters state that, in their opinion, because Sec. 177.834(i)(5)
specifies that the delivery hose when attached to the cargo tank is
considered part of the vehicle, the operator in these circumstances is
in compliance with Sec. 177.834(i)(3). Also, where the receiving tank
and the cargo tank motor vehicle are in positions which do not allow
for a direct line of sight, these carriers believe that compliance is
possible by having the operator assume a position within 25 feet of the
hose at the corner of the house, or other structure, from which point
both cargo tank and receiving tank may be observed. The impediment to
compliance in these cases is that, for relatively short periods when
the operator is connecting/disconnecting the hose to the receiving
tank, it is

[[Page 44044]]

impossible to observe the cargo tank. To avoid the high costs of
compliance associated with hiring and training a second operator to
assist in these frequently occurring situations, the commenters
petitioned for relief from the requirements of Sec. 171.5(a)(1)(iii) by
requesting the following amendment:

In addition to the attendance requirements in Sec. 177.834(i) of
this subchapter, the person who attends the unloading of a cargo
tank vehicle must, except as necessary to facilitate the unloading
of product or to enable that person to monitor the receiving tank,
remain within arm's reach of a remote means of automatic closure
(emergency shut-down device) of the internal self-closing stop
valve.

See Ferrellgas et al. Petition for Reconsideration of Interim Final
Rule (Appendix B).
RSPA rejects the industry's interpretation of the long-standing
operator attendance rules in Sec. 177.834(i)(3) that a single operator
satisfies requirements for an unobstructed view of the cargo tank, and
is within 25 feet of the cargo tank, merely by being in proximity to,
and having an unobstructed view of, any part of the delivery hose,
which may be 100 feet or more away from the cargo tank motor vehicle,
during the unloading (transfer) operation. The rule clearly requires an
operator be in a position from which the earliest signs of problems
that may occur during the unloading operation are readily detectable,
thereby permitting an operator to promptly take corrective measures,
including moving the cargo tank, actuating the remote means of
automatic closure of the internal self-closing stop valve, or other
action, as appropriate. RSPA contends the rule requires that an
operator always be within 25 feet of the cargo tank. Simply being
within 25 feet of any one of the cargo tank motor vehicle's
appurtenances or auxiliary equipment does not constitute compliance.

B. Transports

Compliance with the long-standing attendance requirements is rather
easily achieved by a single operator in most instances involving the
unloading of ``transports'' at bulk plants, similarly configured
industrial facilities, neighborhood gasoline service stations, and
other delivery sites which generally provide for use of transfer hoses
that do not exceed 20 feet in length. It is the provision in the IFR,
requiring the operator to be within arm's reach of a means for closure
of the internal self-closing stop valve or other device that will
immediately stop the discharge of product from the cargo tank at all
times, that makes compliance by a single operator difficult or
impossible.
In order to assure that temporary operational safety controls
specified in Sec. 171.5 may be reasonably complied with by the
operating motor carriers, RSPA is revising the rule by providing that
the person in attendance of the cargo tank may be away from the
mechanical means for closure of the internal self-closing stop valve
for the short period necessary to engage or disengage the motor vehicle
power take-off or other mechanical, electrical, or hydraulic means used
to energize the pump and other components of the discharge system. RSPA
believes this provision allows for a single operator to perform
necessary unloading functions, while also reducing potential threats to
safety by requiring the operator to quickly assume a position within
arm's reach of the emergency discharge control mechanism. With this
revision, RSPA is satisfied that compliance with the temporary rule may
be accomplished by one operator and without requiring the additional
use of a lanyard, electro-mechanical, or other device or system to
remotely stop the flow of product. Thus, under this final rule,
operators of transports may avoid the costs associated with equipping
the cargo tanks with devices or systems that provide an alternative
means of compliance with the HMR. This provision is responsive to
concerns raised by petitioners representing the propane industry. See
Appendices A and B.

C. Bobtails (Local Delivery Trucks)

Issues raised by commenters concerning general applicability of
requirements in Sec. 177.834(i) pertaining to operator attendance
during the unloading of cargo tank motor vehicles relate to a larger
number of motor carriers and specification cargo tanks than those
addressed in this final rule. Therefore, the attendance issue is
addressed only to the extent it bears on temporary operational controls
set-out in this rule. In an ANPRM published in today's Federal Register
RSPA addresses those broader issues with respect to liquefied
compressed gases transported in specification MC 330, MC 331 and
certain non-specification cargo tank motor vehicles. That rulemaking
proposal specifically solicits participation by emergency responders
and other affected persons whose concerns were not made known during
the course of this rulemaking action.
RSPA is revising the IFR attendance requirements to address
economic concerns raised by petitioners on behalf of operators of
bobtail trucks. Peculiarities in the siting of receiving tanks,
accessibility of a cargo tank motor vehicle to the vicinity of the
receiving tank, permanent structures, including high fences, walls, and
the like, create scenarios that need to be addressed separately.
When a bobtail truck is used solely to service receiving tanks that
are located within 25 feet of the cargo tank and the operator has a
direct line of sight, RSPA is confident that compliance with the
temporary rule may be accomplished by one operator and without
incurring additional costs for the application of a lanyard, electro-
mechanical, or other device or system to remotely stop the flow of
product.
Another scenario common to bobtail operations involves the delivery
of propane to a receiving tank which provides for an unobstructed view
of the cargo tank, but is at a distance greater than 25 feet from the
cargo tank. In this situation, a single operator conceivably could
comply with the temporary operational controls in the same manner as
discussed above for transports. However, the need to closely observe
the receiving tank takes the operator more than 25 feet from the cargo
tank motor vehicle and effectively mandates installation of a remote
control system or other system that allows the operator to promptly
activate the emergency discharge controls. Installation of a remote
control system allows the motor carrier to avoid high labor costs
identified by the industry that would otherwise be incurred when a
second operator is employed to achieve compliance with these temporary
regulations. Data provided by the industry concerning radio-controlled
systems that are capable of stopping the engine and, in turn, shutting-
down the operation of the pump, thereby allowing the internal self-
closing stop valve to revert to its fail-safe position, indicate that
most bobtail cargo tanks could be so equipped at a unit cost of
approximately $250 to $500.
Still another frequently reported unloading scenario involves
situations where the receiving tank is more than 25 feet from the cargo
tank motor vehicle and the operator's view is obstructed by a
structure, a natural formation, foliage, or some other barrier. RSPA
understands further that many residential deliveries of propane fall
into this unloading scenario. This situation is of greatest concern to
RSPA because the possibility exists that a failure of a discharge
valve, pump seal, hose reel swivel joint, or hose during unloading
(transfer) may not be immediately detected. Should that occur, a
dangerous quantity of propane

[[Page 44045]]

could be released to the environment, possibly ignite, and result in
serious injuries, extensive property damage, or both.
In the unloading scenario described above, when a single operator
attends to the unloading operation, that person is required by this
final rule to take additional safety precautions. Before commencing the
transfer of product, (i.e., opening the internal valve), the operator
must assume a position near the cargo tank motor vehicle that is within
arm's reach of the emergency discharge controls. Alternatively, if the
operator has a remote control system, or other device, that has a
capability to immediately close the internal valve, the operator must
assume a position that assures an unobstructed view of the cargo tank.
In either event, a transfer of product may be affected only at such
times as the operator has an unobstructed view of the cargo tank.
RSPA believes this final rule clearly provides motor carriers with
the ability for a single operator to safely unload liquefied compressed
gases transported in specification MC 330 and MC 331 cargo tank motor
vehicles in most circumstances and at a minimal cost for installation,
maintenance, and training in the use of remote control systems, or
other devices, that permit the operator to promptly stop the flow of
product in the event of an unintentional release to the environment.
The temporary rules permit motor carriers to continue until March 1,
1999, their use of cargo tank motor vehicles that do not conform to
Sec. 178.337-11 for the transportation of hazardous materials that are
essential to home, agriculture, and industry.
Prior to March 1, 1999, RSPA anticipates the industry will have
perfected passive shut-off systems that allow motor carriers to bring
their cargo tank motor vehicles into compliance with requirements of
Sec. 178.337-11.

D. Need for Passive System Requirements

Several commenters question whether the emergency discharge
requirement in Sec. 178.337-11 is necessary. ICI Technology and Barrett
Transportation Compliance state that RSPA is placing too much emphasis
on a passive automatic shut-down device. They believe that knowing the
cause of accidents and focusing on prevention is better than trying to
mitigate the incident once it occurs.
TFI believes that a hose management program, along with industry
awareness training programs, possible requirements for brake interlock
systems, and improvements to the delivery system of cargo tanks in
ammonia service, including the emergency-shut-off valve, are sufficient
to provide an equivalent level of safety to a fully passive excess flow
valve, and may be one possible long-term solution to the problem at
hand. NPGA supports TFI's position and believes that enhanced hose
testing, training and inspection procedures would provide an equivalent
level of safety inasmuch as the majority of product discharges are the
result of hose ruptures rather than complete separations which excess
flow valves are intended to address.
The HMR address two unintentional release scenarios, specifically:
(1) Total hose or piping rupture or separation; and (2) partial hose or
piping rupture, separation, or leak. Commenters correctly note that the
passive emergency discharge control requirement in Sec. 178.337-
11(a)(1)(i) is meant to protect against the unintentional discharge of
liquefied compressed gases where there is a total hose or piping
rupture or separation. Such events have potentially large consequences
and high probability of incapacitating the operator to the extent that
person cannot perform emergency procedures. For partial hose or piping
rupture, separation, or leak, operator-dependent countermeasures are
the primary safety measure. The operator-attendance requirements for
unloading operations in Sec. 177.834(i)(2) ensure that the person
attending an unloading operation is alert, can see the cargo tank
during the unloading operation and is close enough to the cargo tank to
reach the emergency shut-off system in the event of an emergency. The
training requirements in Sec. 172.700 are intended to ensure that the
person attending the unloading operation is aware of safety procedures
and is familiar with the HMR in general and the requirements that apply
specifically to the functions the employee performs. Where a partial
hose or piping rupture, separation, or leak occurs, only the operator-
dependent countermeasures come into play.
With issuance of this final rule and the ANPRM, RSPA is reviewing
and addressing existing HMR requirements, including the passive system
requirement in Sec. 178.337-11. RSPA also is considering the need for a
hose management program and other measures that address the problem of
hose ruptures. RSPA will review these requirements from a cost/benefit
perspective, especially in light of new technologies that are available
now or will shortly be available.

E. Decisions on Petitions for Reconsideration

Based on the above information and discussions, NPGA's March 21,
1997 petition for reconsideration of the ``arm's reach'' requirement
contained in the February 19, 1997 IFR is denied. Based on the same
information and discussions, the March 21, 1997 petition for
reconsideration of the IFR filed by Ferrellgas, et al (joint
petitioners) is granted in part and denied in part. Specifically, as
requested by the joint petitioners, this final rule authorizes the
person attending the unloading of a cargo tank motor vehicle to step
away from the mechanical means of closure of the internal self-closing
stop valve for the short duration necessary to engage or disengage the
motor vehicle power take-off or other mechanical, electrical, or
hydraulic means used to energize the pump and other components of the
discharge system on the cargo tank. It does not, however, authorize
that person to step away from the means of immediate closure of the
internal self-closing stop valve for any other reason.

III. Provisions of the Final Rule

A. Section 171.5

Paragraph 171.5(a)(1) sets forth use provisions under which MC 330,
MC 331 and non-specification cargo tank motor vehicles authorized under
Sec. 173.315(k) may be operated and unloaded. Also, this paragraph
makes clear that Sec. 171.5 does not apply to cargo tank motor vehicles
used to transport carbon dioxide.
Paragraph 171.5(a)(1)(i) requires that, before each transfer of
product is initiated from a cargo tank motor vehicle, the person
performing the unloading function should verify that each component of
the discharge system is of sound quality, is free of leaks, and that
all connections are secure. Also, the transfer hose must be subjected
to full transfer pressure prior to the first unloading of product each
day.
Paragraph 171.5(a)(1)(ii) requires that, before the transfer of
product is initiated from a cargo tank motor vehicle using a new or
repaired transfer hose, or a modified hose assembly for the first time,
the hose assembly must be subjected to a specified pressure test. This
paragraph also provides that a hose or associated equipment that shows
signs of leakage, significant bulging or other defects may not be used.
Where hoses are used to transfer liquefied compressed gases, a
procedure must be instituted to ensure that hose assemblies are
maintained at a level of integrity suited to each hazardous material.
An acceptable procedure for maintenance,

[[Page 44046]]

testing and inspection of hoses is outlined in publication RMA/IP-11-2,
``Manual for Maintenance, Testing and Inspection of Hose'', 1989
edition, published by the Rubber Manufacturers Association.
Paragraph 171.5(a)(1)(iii) requires that, in the event of an
unintentional release of lading to the environment during transfer, the
person attending the unloading operation must promptly activate the
internal self-closing stop valve and shut down all motive and auxiliary
power equipment. This paragraph clarifies that prompt activation can be
accomplished in at least three ways, specifically: (1) Through
compliance with the requirements in Sec. 178.337-11(a)(1)(i); (2)
through the use of a qualified person positioned within arm's reach of
the mechanical means of closure throughout the unloading operation,
except during the short period of time necessary to engage or disengage
the motor vehicle power take-off or other mechanical, electrical, or
hydraulic means used to energize the pump and other components of a
cargo tank's discharge system; or (3) through the use of a fully
operational radio-controlled system that is capable of stopping the
transfer of lading by use of a transmitter carried by a qualified
person unloading the cargo tank.
This paragraph also provides that where a radio-controlled system
is used as a means of promptly activating the internal self-closing
stop valve, the attendance requirements of Sec. 177.834(i)(3) are
satisfied when the qualified person unloading the cargo tank: (1)
Carries a radio transmitter that will activate the closure of the
internal self-closing stop valve; (2) remains within the operating
range of the transmitter; and (3) has an unobstructed view of the cargo
tank motor vehicle at all times when its internal stop-valve is open.
Paragraph 171.5(a)(1)(iv) states that cargo tank motor vehicles
that meet the emergency discharge system requirements in Sec. 178.337-
11(a)(1)(i) may be operated under the provisions of Sec. 171.5(a)(1).
Paragraph 171.5(a)(1)(v) requires that a comprehensive written
emergency operating procedure be developed by persons conducting
transfer operations, that the written procedures be prominently
displayed on or in each affected cargo tank motor vehicle, and that
hazmat employees who perform unloading functions be trained in those
procedures.
Paragraph 171.5(a)(1)(vi) requires that cargo tank manufacturers,
assemblers, retesters, motor carriers, and other hazmat employers
subject to Sec. 171.5 train their employees to perform the new
function-specific requirements in Sec. 171.5 and maintain records of
this training as required under Sec. 172.704(d). As a general
provision, this requirement already exists. Section 172.702 of the HMR
requires that a hazmat employer ensure that each of its hazmat
employees is trained in accordance with Subpart H of Part 172. The
training requirements apply to persons who manufacture, maintain, and
test cargo tanks, and to persons who operate cargo tanks. Testing, and
a ``certification that the hazmat employee has been trained and
tested,'' is required by the regulation and Federal hazmat law. RSPA
views emergency discharge controls and their operation to be essential
to cargo tank safety and to be a significant element in the training
program of any involved hazmat employer. Also, there are the driver
training requirements in Sec. 177.816 that include special requirements
for operators of cargo tanks with a specific reference to training on
the operation of emergency control features.
Paragraph 171.5(a)(2), regarding the continuing qualification of a
cargo tank motor vehicle, allows existing in-service cargo tank motor
vehicles that do not meet the requirements of Sec. 178.337-11(a)(1)(i)
to continue in operation if the Certificate of Compliance and
inspection report required under Sec. 180.417(b) contain the following
statement: ``Emergency excess flow control performance not established
for this unit.''
Paragraph 171.5(a)(3), regarding new cargo tank motor vehicles
manufactured, marked and certified prior to March 1, 1999, states that
those vehicles may be marked and certified as conforming to
specification MC 331 if they meet all of the specification
requirements, with the exception of the emergency excess flow control
function, and the following statement appears on the certification
document, ``Emergency excess flow control performance not established
for this unit.''
Paragraph 171.5(b) specifies the marking that must be displayed on
a cargo tank used or represented for use under Sec. 171.5.
Paragraph 171.5(c) states that requirements specified in Sec. 171.5
are applicable from August 16, 1997, through March 1, 1999.

B. Immediate Compliance

This final rule is an alternative to existing requirements.
Industry may choose to comply with the requirements in Sec. 178.337-11,
tracing back to 1941, or with provisions in Sec. 171.5. However,
because segments of industry are in non-compliance with requirements in
Sec. 178.337.11(a)(1)(v) and the attendance requirements in
Sec. 177.834(i)(3), a serious threat to the public safety continues to
exist and must be addressed without delay. Furthermore, continued non-
compliance with the above-stated requirements poses a serious economic
threat to industry in that MC 330 and MC 331 cargo tank motor vehicles
that do not conform to the HMR may not be used to transport hazardous
materials. As stated by NPGA in its application for exemption, the
impacts of continued operation of these vehicles are ``so many'' and
``so pervasive as to be almost incalculable from an economic impact
viewpoint.'' Based on the above, and the fact that the final rule
requirements are refinements of the IFR requirements that have been in
effect since February 19, 1997, good cause exists for making this rule
immediately effective upon expiration of the IFR.

IV. Rulemaking Analyses and Notice

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a significant regulatory action under
section 3(f) of Executive Order 12866 and was reviewed by the Office of
Management and Budget. The rule is considered significant under the
Regulatory Policies and Procedures of the Department of Transportation
(44 FR 11034).
The preliminary regulatory evaluation prepared in support of the
interim final rule published on February 19, 1997, was reexamined and
modified to remove certain incidents that were not appropriate to
issues considered in this rulemaking, and to consider economic cost
data submitted to the docket by commenters. The final regulatory
evaluation is available for review in the public docket.
Most of the compliance cost burden of this rule is expected to fall
on propane dealers, and RSPA expects these costs to be passed on to
customers. A total one-time expenditure of $4.7 million to $9.2 million
is estimated as being required of these dealers. This expenditure is
very small in relation to the revenue from sales of liquefied petroleum
gas by dealers to final users, without even counting those sales that
may be made directly to industrial, agricultural or commercial
customers by merchant wholesalers or gas producers. The latest
available (1992) Census of Retail Trade showed annual sales of
liquefied petroleum gas by retail dealers alone to amount to $4.87
billion. The $4.7

[[Page 44047]]

million to $9.2 million estimated above is relatively small when
compared only to the margin between operating expenses and revenues net
of the cost of such purchases and appears to add relatively little to a
year's worth of outlays made by these dealers for capital equipment.
The U.S. Bureau of the Census has provided RSPA with 1992 sample-
survey-based estimates of these quantities that are normally not
published in such industry-specific detail since they have been
subjected to only limited review. They were only available combined
with those for fewer than 300 miscellaneous types of fuel dealers that
could not be classified as ``fuel oil'' vendors, but this minor
category accounted for only 1.3% of combined sales according to the
1992 Census of Retail Trade. 98.7% of the estimated operating margin
and of the estimated annual capital expenditure (other than for land)
amounted to $499 million and $191 million, respectively, for retail
liquefied petroleum gas dealers.
Another way of putting these estimated compliance costs in
perspective is to express their major component, the equipping of
bobtails with radio frequency devices, as an average expenditure per
retail liquefied petroleum gas business location. Using the 5393 such
locations in existence during an entire year that were shown in the
1992 Census of Retail Trade, yields an average of under $800 per
location.
These essentially one-time-only costs of $4.7 million to $9.2
million (or annualized costs of $3.13 million to $6.14 million, when
amortized over the 18 months this temporary regulation will be in
effect) compare favorably with estimated annual benefits to society, in
terms of reduced injuries, evacuations, and property damages, ranging
from a low of $322,071 to a high of $3 million. The low end of this
range is based upon data contained in fourteen unloading incidents
reported to RSPA during the past seven years. The high end of the range
considers those same incidents but then adjusts for a ten-fold estimate
of under reporting of economic losses and a two-fold estimate of under
reporting of the actual number of incidents, based upon the Office of
Technology Assessment report ``Transportation of Hazardous Materials''
(July 1986). In event the requirements specified in this revised final
rule were to prevent a major release of propane potentially threatening
the life of four or more persons, the rule would yield a net benefit to
society.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
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:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This interim final rule addresses covered subject item (5) above
and preempts State, local, and Indian tribe requirements not meeting
the ``substantively the same'' standard. Federal hazardous materials
transportation law provides at Sec. 5125(b)(2) 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 has determined that the
effective date of Federal preemption for these requirements will be
November 17, 1997. Thus, RSPA lacks discretion in this area, and
preparation of a federalism assessment is not warranted.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (Act), as amended, 5 U.S.C. 601-612,
directs agencies to consider the potential impact of regulations on
small business and other small entities. The Act, however, applies only
to rules for which an agency is required to publish a notice of
proposed rulemaking pursuant to section 553 of the Administrative
Procedure Act (APA), 5 U.S.C. 553. See 5 U.S.C. 603(a) and 604(a).
Because of the emergency nature of this rule, RSPA is authorized under
sections 553(b)(B) and 553(d)(3) of the APA to forego notice and
comment and to issue this final rule with an immediate effective date.
Consequently, RSPA is not required under the Act to do a regulatory
flexibility analysis in this rulemaking.
Specifically, under sections 553(b)(B) and 553(d)(3), APA
authorizes agencies to dispense with certain procedures for rules,
including notice and comment, when they find ``good cause'' to do so.
``Good cause'' includes a finding that following notice-and-comment
procedures would be ``impracticable, unnecessary, or contrary to the
public interest.'' Section 553(d)(3) allows an agency, upon a finding
of good cause, to make a rule effective immediately. ``Good cause'' has
been held to include situations where immediate action is necessary to
reduce or avoid health hazards or other imminent harm to persons or
property, or where inaction would lead to serious dislocation in
government programs or the marketplace.
Nevertheless, RSPA is concerned with the effect this rule may have
on small business. Consequently, in preparing a regulatory evaluation
under Executive Order 12866, RSPA analyzed, based on information
currently available to the agency, the impact of this rule on all
affected parties, including small businesses. The regulatory evaluation
is available for review in the public docket.
The Regulatory Flexibility Act is concerned with identifying the
economic impact of regulatory actions on small businesses and other
small entities. It requires a final rule to be accompanied by a final
regulatory flexibility analysis, consisting of a statement of the need
for the rule, a summary of public comments received on regulatory
flexibility issues and agency responses to them, a description of
alternatives to the rule consistent with the regulatory statutes but
imposing less economic burden on small entities, and a statement of why
such alternatives were not chosen. Unless alternative definitions have
been established by the agency in consultation with the Small Business
Administration, the definition of ``small business'' has the same
meaning as under the Small Business Act. Because no special definition
has been established, RSPA employs the thresholds published (in 13 CFR
121.201) of 100 employees for wholesale trade in general and $5,000,000
annual sales for retail trade in general. As noted above, liquefied
petroleum gas dealers constitute the principal type of business

[[Page 44048]]

on which significant compliance costs will be imposed by this rule, in
particular for equipment on retail-type delivery vehicles. Using the
Small Business Administration definitions and the latest (1992)
available Census of Retail Trade, it appears that over 95% of retail
liquefied petroleum gas dealers must be considered small businesses for
purposes of the Regulatory Flexibility Act. They accounted in the 1992
Census for over 50% of business locations and almost 43% of annual
sales. Unpublished 1992 Census of Wholesale Trade figures provided to
RSPA by the U.S. Bureau of the Census indicate that over 95% of
merchant wholesalers of liquefied petroleum gas also must be considered
small businesses; they accounted for approximately 40% of business
locations and over 50% of annual sales.
The Regulatory Flexibility Act suggests that it may be possible to
establish exceptions and differing compliance standards for small
business and still meet the objectives of the applicable regulatory
statutes. However, given the importance of small business in liquefied
petroleum gas distribution, especially in its retail sector where
improved emergency shut-off equipment is necessary to assure adequate
safety during delivery operations, RSPA believes that it would not be
possible to establish differing standards and still accomplish the
objectives of Federal hazardous materials transportation law (49 U.S.C.
5101 et seq.). RSPA further believes that the discussion in the
regulatory evaluation and in the February 19, 1997 Federal Register
publication of the interim final rule, as to the need for regulatory
action, issues raised by the public and the consideration of
alternatives open to the government, apply to small as well as large
businesses in the affected industries.
While certain regulatory actions may affect the competitive
situation of an industry by imposing relatively greater burdens on
small-scale than on large-scale enterprises, RSPA does not believe that
this will be the case with this rule. The principal types of compliance
expenditure effectively required by the rule, radio frequency emergency
shut-off system installation, is imposed on each vehicle, whether
operated within a large or a small fleet. While there is undoubtedly
some administrative efficiency advantage to a large firm in being able
to make a single set of arrangements for such installations on a large
number of vehicles at a time, imposition of the requirement
contemplates use of commercially-available equipment, without any need
for extensive custom development work that only a large firm could
afford. While the only other compliance expenditure that is believed to
be significant in the aggregate, that for documentation of emergency
procedures, has been projected here on a per-firm rather than a per-
vehicle or per-location basis, the average of $62 estimated for each
preparation does not appear high enough to significantly affect the
economics of small-scale as contrasted with large-scale distribution of
the affected commodities.

D. Unfunded Mandates Reform Act

This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

E. Paperwork Reduction Act

The information collection and recordkeeping requirements contained
in this final rule have been submitted for renewal to the Office of
Management and Budget (OMB) under the provisions of the Paperwork
Reduction Act of 1995. The requirement is currently approved under OMB
Control Number 2137-0595. Section 1320.8(d), Title 5, Code of Federal
Regulations requires that RSPA provide interested members of the public
and affected agencies an opportunity to comment on information
collection and recordkeeping requests. RSPA estimates that the total
information collection and recordkeeping burden in this final rule is
18,573 hours, at a cost of $422,660, for the development and
maintenance of the comprehensive emergency operating procedure. These
figures are based in RSPA's belief that standardized emergency
operating procedures can be developed for use by a majority of industry
members, thus reducing substantially the burden hours and cost to
individual industry members of compliance with the emergency operating
procedures requirement. Requests for a copy of this information
collection should be directed to Deborah Boothe, Office of Hazardous
Materials Standards (DHM-10), Research and Special Programs
Administration, Room 8102, 400 Seventh Street, SW, Washington, DC
20590-0001. Telephone (202) 366-8553. Under the Paperwork Reduction Act
of 1995, no person is required to respond to an information collection
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 number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.

List of Subjects in 49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.

In consideration of the foregoing, 49 CFR part 171 is amended as
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for Part 171 is revised to read as
follows:

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

2. Section 171.5 is added to read as follows:

Sec. 171.5 Temporary regulation; liquefied compressed gases in cargo
tank motor vehicles.

(a) Operation of new and existing cargo tank motor vehicles. For a
cargo tank motor vehicle used to transport liquefied compressed gases,
other than carbon dioxide, Sec. 178.337-11(a)(1)(i) of this subchapter
requires that each internal self-closing stop valve and excess flow
valve must automatically close if any of its attachments are sheared
off or if any attached hoses or piping are ruptured or separated. Other
regulations in Parts 173 and 180 of this subchapter reference this
requirement or similar requirements in effect at the time of
manufacture of a cargo tank motor vehicle. Notwithstanding this
requirement, a DOT MC 330 or MC 331 specification cargo tank motor
vehicle, or a non-specification cargo tank motor vehicle conforming to
the requirements of Sec. 173.315(k) of this subchapter, may, without
certification and demonstrated performance of the internal self-closing
stop valve or the excess flow feature or self-closing stop valve of its
emergency discharge control system, be represented for use and used to
transport certain liquefied compressed gases under the following
conditions:
(1) Use. The cargo tank motor vehicle must otherwise be operated,
unloaded and attended in full conformance with all applicable
requirements of this subchapter and the following additional
requirements:

[[Page 44049]]

(i) Before initiating each transfer from the cargo tank motor
vehicle, the person performing the function shall verify that each
component of the discharge system is of sound quality, is free of
leaks, and that connections are secure. In addition, prior to
commencing the first transfer of each day, the transfer hose shall be
subjected to full transfer pressure.
(ii) Prior to commencing transfer using a new or repaired transfer
hose or a modified hose assembly for the first time, the hose assembly
must be subjected to a pressure test. The pressure test must be
performed at no less than 120 percent of the design pressure or maximum
allowable working pressure (MAWP) marked on the cargo tank motor
vehicle, or the pressure the hose is expected to be subjected to during
product transfer, whichever is greater. This test must include all hose
and hose fittings and equipment arranged in the configuration to be
employed during transfer operations. A hose or associated equipment
that shows signs of leakage, significant bulging, or other defects, may
not be used. Where hoses are used to transfer liquefied compressed
gases, a procedure must be instituted to ensure that hose assemblies
are maintained at a level of integrity suited to each hazardous
material. An acceptable procedure for maintenance, testing and
inspection of hoses is outlined in publication RMA/IP-11-2, ``Manual
for Maintenance, Testing and Inspection of Hose'', 1989 edition,
published by the Rubber Manufacturers Association, 1400 K Street, N.W.,
Washington, DC 20005.
(iii) If there is an unintentional release of lading to the
environment during transfer, the internal self-closing stop valve shall
be promptly activated, and the qualified person unloading the cargo
tank motor vehicle shall promptly shut down all motive and auxiliary
power equipment. Prompt activation of the internal self-closing stop
valve may be accomplished through:
(A) Compliance with Sec. 178.337-11(a)(1)(i) of this subchapter; or
(B) A qualified person positioned within arm's reach of the
mechanical means of closure for the internal self-closing stop valve
throughout the unloading operation; except, that person may be away
from the mechanical means only for the short duration necessary to
engage or disengage the motor vehicle power take-off or other
mechanical, electrical, or hydraulic means used to energize the pump
and other components of the cargo tank motor vehicle's discharge
system; or
(C) A fully operational remote-controlled system capable of
stopping the transfer of lading by operation of a transmitter carried
by a qualified person attending unloading of the cargo tank motor
vehicle. Where the means for closure of the internal self-closing stop
valve includes a remote-controlled system, the attendance requirements
of Sec. 177.834(i)(3) of this subchapter are satisfied when a qualified
person:
(1) Is carrying a radio transmitter that can activate the closure
of the internal self-closing stop valve;
(2) Remains within the operating range of the transmitter; and
(3) Has an unobstructed view of the cargo tank motor vehicle at all
times that the internal stop-valve is open.
(iv) A cargo tank motor vehicle that has an emergency discharge
system conforming to the requirements in Sec. 178.337-11(a)(1)(i) of
this subchapter may be operated under the provisions of this paragraph
(a)(1).
(v) A comprehensive written emergency operating procedure must be
developed for all transfer operations and hazmat employees who perform
unloading functions must be trained in its provisions. The emergency
operating procedure must be prominently displayed in or on the cargo
tank motor vehicle.
(vi) As required by Sec. 172.704 of this subchapter, each
manufacturer, assembler, retester, motor carrier and other hazmat
employer subject to the requirements of this section shall ensure that
its hazmat employees are trained to properly perform these new
function-specific requirements including the meaning of the marking
specified in paragraph (b) of this section. The hazmat employer shall
ensure that a record of the training is created, certified, and
maintained as specified in Sec. 172.704(d) of this subchapter.
(2) Continuing qualification. An existing in-service cargo tank
motor vehicle may continue to be marked and documented as required by
Part 180 of this subchapter if the following statement is added to the
Certificate of Compliance by the owner or operating motor carrier:
``Emergency excess flow control performance not established for this
unit.''
(3) New cargo tank motor vehicles. A new (unused) cargo tank motor
vehicle manufactured, marked and certified prior to March 1, 1999, may
be marked and certified as conforming to specification MC 331 if it
otherwise meets all requirements of the specification and the following
statement is added to the certification document required by
Sec. 178.337-18 of this subchapter: ``Emergency excess flow control
performance not established for this unit.''
(b) Marking. The following marking must be displayed on a cargo
tank motor vehicle used or represented for use under this section:

BILLING CODE 4910-60-P
[GRAPHIC] [TIFF OMITTED] TR18AU97.006

BILLING CODE 4910-60-C

[[Page 44050]]

(1) The letters must be white and the background black.
(2) The letters must be at least 1.5cm in height.
(3) The marking must be 6cm x 15cm.
(c) Requirements of this section are applicable to a cargo tank
motor vehicle used to transport liquefied compressed gases, other than
carbon dioxide, from August 16, 1997 through March 1, 1999.

Issued in Washington, DC on August 13, 1997, under authority
delegated in 49 CFR part 1.
Kelley Coyner,
Acting Administrator, Research and Special Programs Administration.

Appendices

Note: The following appendices will not appear in the Code of
Federal Regulations.

Appendix A--National Propane Gas Association Petition for
Reconsideration of Interim Final Rule

March 21, 1997

By First Class Mail

The Honorable Dharmendra K. Sharma,
Administrator, Research & Special Programs Administration, U.S.
Department of Transportation, 400 7th Street, S.W., Washington, D.C.
20590-0001.

Re: Amendment to NPGA's Petition for Reconsideration

Dear Administrator Sharma: On behalf of the National Propane Gas
Association (``NPGA'' or the ``Petitioner'') and its members, we
hereby amend our Petition for Reconsideration of the Emergency
Interim Final Rule on Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service (``Interim Final Rule''), Docket No. RSPA-97-
2133 (HM-225), filed on March 21, 1997, to correct a typographical
error.
On the bottom of page eight (8) of our Petition for
Reconsideration, we inadvertently stated that the $660 million in
additional costs would represent ``a potential increase of .07 cents
per gallon to the consumer.'' The costs would reflect a potential
increase of 7 cents per gallon to the consumer. Therefore, the
sentence containing this statement should read as follows: ``This
figure represents a potential increase of $.07 per gallon to the
consumer.''
We apologize for any confusion this error may have caused.
Respectfully submitted,
Eric A. Kuwana,
Counsel for the National Propane Gas Association.

March 21, 1997

By Hand Delivery

202-457-6420

Dr. Dharmendra K. Sharma,
Administrator, Research & Special Programs Administration, U.S.
Department of Transportation, 400 7th Street, S.W., Washington, D.C.
20590-0001.

Re: Petition for Reconsideration of Interim Final Rule, Pursuant to 49
CFR Sec. 106.35; and Petition for Rulemaking Pursuant to 49 CFR
Sec. 106.31

Dear Administrator Sharma: On behalf of the National Propane Gas
Association (``NPGA'' or the ``Petitioner'') and its members, we
hereby petition the Research and Special Programs Administration
(``RSPA'') of the U.S. Department of Transportation (``DOT'') for
reconsideration of a single requirement imposed in the Emergency
Interim Final Rule on Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service (``Interim Final Rule''), Docket No. RSPA-97-
2133 (HM-225), which was published on February 19, 1997 (62 FR
7638). By this petition, NPGA and its members do not seek or
otherwise request reconsideration of the entire Interim Final Rule.
Instead, NPGA seeks reconsideration of the single requirement
addressed herein. At the same time, we remain committed to work with
RSPA to ensure the safe loading and unloading of LP-gas (or propane
gas) from cargo tank motor vehicles.

The Petitions

Pursuant to the procedural provisions in 49 CFR Sec. 106.35(a),
we specifically petition RSPA for reconsideration of the additional
attendance requirement in 49 CFR Sec. 171.5(a)(1)(iii), which
states, in relevant part, that ``[t]he person who attends the
unloading of a cargo tank motor vehicle must have an unobstructed
view of the discharge system and be within arm's reach of a means
for closure (emergency shut-down device) of the internal self-
closing stop valve or other device that will immediately stop the
discharge of product from the cargo tank.'' This language
effectively mandates that two or more attendants travel to and be
present during the unloading of propane gas from a cargo tank motor
vehicle. The additional attendance requirement is not justified by
the exceptional safety record of the propane gas industry, is not
necessary to ensure the safe unloading of propane gas from a cargo
tank motor vehicle, and will result in enormous costs and
devastating impacts to the propane gas industry.
This Petition for Reconsideration satisfies the standard set
forth in 49 CFR Sec. 106.35(a) for such petitions in that compliance
with the additional attendance requirement in Sec. 171.5(a)(1)(iii)
is neither practicable, reasonable, nor in the public interest. The
provision, which was effective immediately upon publication of the
Interim Final Rule on February 19, is extremely costly and will have
an immediate and severe financial impact on the industry. Because
the additional attendance requirement in the Interim Final Rule has
no demonstrated nexus to the reported accidents or incidents cited
by RSPA in that rule, RSPA cannot justify the approximately $660
million cost of compliance. NPGA and its members strongly believe
that, based on the clear weight of the evidence and the other
reasons set forth herein, this Petition for Reconsideration of the
additional attendance requirement in the Interim Final Rule warrants
the removal of that burdensome requirement by RSPA.\1\ Especially
because the requirement was imposed without any opportunity for
notice and comment, we further request that the effectiveness of the
additional attendance requirement be stayed pending consideration of
this petition.
---------------------------------------------------------------------------

\1\ NPGA proposes instead that RSPA adopt the less burdensome,
but equally safe, requirement that ``[t]he vehicle driver be
continually in attendance and control of the loading and unloading
operations.''
---------------------------------------------------------------------------

As discussed further below, NPGA believes the magnitude of the
impact on the propane gas industry justifies RSPA's acting on its
Petition for Reconsideration immediately without delay, an
opportunity for notice and comment, or any other proceedings. Such
expedited treatment is expressly contemplated in the procedural
provisions of Sec. 106.35. Nonetheless, pursuant to the provisions
in 49 CFR Sec. 106.31, we additionally petition RSPA for rulemaking
to amend 49 CFR Sec. 171.5(a)(1)(iii) in the event RSPA denies the
NPGA's Petition for Reconsideration of the Interim Final Rule.

NPGA's Efforts

Initially, we need to emphasize that NPGA and its members have
an absolute commitment to the safe unloading of propane gas from
cargo tank motor vehicles. Simply stated, the propane gas industry
must maintain a record of safety in order to keep its customers, to
receive insurance, to maintain a favorable perception in the
community and, at the bottom line, to remain in business. The
propane industry has achieved an admirable record of safety.
Consistent with this absolute commitment to safety, members of
the propane gas industry undertook an immediate investigation after
the September 1996 incident at Sanford, North Carolina, and
voluntarily evaluated and disclosed the specific issue relating to
emergency discharge control systems that triggered the Interim Final
Rule. Further, NPGA voluntarily formed a task force to identify
viable alternatives to the current emergency discharge control
systems and to ensure the safe unloading of propane gas under all
conditions.\2\ Consistent with this process, NPGA and its members
continue to embrace the opportunity to participate with RSPA to
identify and fashion measures to ensure the safe unloading of
propane gas from cargo tank motor vehicles in every circumstance.
---------------------------------------------------------------------------

\2\ A brief discussion of NPGA's efforts, including those
related to the Special Presidential Task Force, can be found in
NPGA's prepared Statement submitted to Docket No. RSPA-97-2133 (HM-
225) during the public meeting on March 20, 1997. The Statement is
incorporated herein by reference.
---------------------------------------------------------------------------

NPGA Membership

NPGA is the national trade association representing the LP-gas
(principally propane) industry and has about 3,500 member entities
and companies in all 50 states, including 37 affiliated state and
regional associations. Propane gas is vital to the economic well-

[[Page 44051]]

being of this nation and is distributed for critical industrial,
commercial and residential uses every single day of the year. While
the single largest group of NPGA members are retail marketers of
propane gas, the membership also includes propane producers,
transporters and wholesalers, as well as manufacturers and
distributors of associated equipment, containers and appliances.
Propane gas is used in over 18 million installations nationwide for
home and commercial heating and cooking, in agriculture, in
industrial processing, and as a clean air alternative engine fuel
for both over-the-road vehicles and industrial lift trucks.
The majority of NPGA's members are small businesses, which bear
a disproportionate burden of the Interim Final Rule. According to
its own analysis, RSPA acknowledges that at least 90 percent of the
businesses affected by the Interim Final Rule are small businesses
(62 FR 7646). It is NPGA's position that the additional attendance
requirements will have an immediate and devastating financial impact
on these small businesses.\3\ A more detailed analysis of the
economic impact of the additional attendance requirement is provided
below.
---------------------------------------------------------------------------

\3\ RSPA asserts that this rulemaking is exempt from the
Regulatory Flexibility Act, as amended, 5 U.S.C. Secs. 601 et seq.,
because the Act is not applicable when a Notice of Proposed
Rulemaking is not required (62 FR 7646). RSPA's argument relies on
the validity of its ``good cause'' finding that it was
impracticable, unnecessary or contrary to the public interest to
provide for notice and comment. Because the Interim Final Rule was
not tailored carefully or otherwise necessary to avoid any imminent
harm, RSPA's finding of good cause is deficient and cannot justify
an exemption from the Act.
---------------------------------------------------------------------------

Industry Safety Record

The propane gas industry has achieved an extraordinary safety
record. From 1986 to 1995, there were almost 10 million tank
transport truck deliveries and almost 300 million bobtail deliveries
of propane. (Attachment A).
Those deliveries carried almost 90 billion gallons of propane to
residential, commercial, agricultural and industrial consumers
throughout every state and county in the United States. (Attachment
B).\4\ Except for the incident in Sanford, North Carolina described
below, NPGA is unaware of any other serious reported incident during
this 10 year period relating to a failure of the emergency discharge
control system during the unloading of a tank transport truck. There
have been no fatalities, injuries, fires or explosions caused by a
failure of the emergency discharge control system during the
unloading of a tank transport truck in more than 10 million
deliveries of propane. As to the smaller bobtail cargo tanks, RSPA
acknowledges in the Interim Final Rule that only 9 incidents of
propane release have been reported during the past 10 years
involving any allegation of a failure of the emergency discharge
control system on a bobtail cargo tank.\5\ None of the 9 incidents
of propane release cited by RSPA resulted in any fatalities. This
represents approximately one release per 30 million bobtail
deliveries. Based on these numbers, this also represents one release
per almost 10 billion gallons of propane delivered in the past ten
years.
---------------------------------------------------------------------------

\4\ Based on current data compiled by NPGA, there were 9,891,403
tank transport deliveries and 296,742,077 bobtail deliveries for a
total of 306,633,479 deliveries of propane during the 10 year
period. These deliveries carried 89,022,623,000 gallons of propane.
Indeed, this estimate is conservative because in actuality, these
quantities of propane are transported twice: first by transport
truck from the terminal to the bulk storage retail facility, and
then by bobtail to the residential, commercial or industrial users.
And, each instance of transportation itself involves two transfers:
loading and unloading.
\5\ NPGA notes that the exact causes of the 9 incidents of
propane release cited by RSPA in the Interim Final Rule are not
clear. There is absolutely no evidence in the Interim Final Rule
that the additional attendance requirement in Sec. 171.5(a)(1)(iii)
would have prevented those 9 incidents or is tailored to address the
causes of those incidents. NPGA strongly believes that improved
training, hose testing and system inspections are more likely to
prevent accidental releases of propane than the burdensome and
unnecessary additional attendance requirement.
---------------------------------------------------------------------------

The Sanford Event

Notwithstanding these statistics, RSPA promulgated the Interim
Final Rule without providing for notice and comment after an
accidental release of propane that involved no fire, no explosion
and no injuries or fatalities in Sanford, North Carolina on
September 8, 1996. The release involved a large cargo tank semi-
trailer pulled by a highway truck tractor unloading a cargo of
propane into permanent storage tanks at a propane marketing
facility. Shortly after the transfer operation began, the transfer
hose separated from the transfer connection at its juncture with the
plant piping and began discharging liquid propane into the
atmosphere. The vehicle driver heard sounds unusual for a transfer
operation and shut off the vehicle engine. According to the report
of the Federal Highway Administration (``FHWA'') inspector, the
driver was not able to get to the remote controls to close the
internal stop flow valve. Nonetheless, apparently as a result of the
failure of the excess flow protection in the cargo tank motor
vehicle, the entire propane cargo of approximately 9,700 gallons was
discharged into the atmosphere. There was no ignition of the
propane, and thus no fire, explosion, loss of life or loss of
property.
More importantly, the emergency flow protection built into the
permanent storage tanks at the propane marketing facility apparently
did not activate automatically as designed and, as a result, the
approximately 35,000 gallons of propane in the storage facility were
also discharged into the atmosphere. The failure of the flow
protection built into the permanent storage tanks contributed the
vast majority of the released propane, not the cargo tank motor
vehicle. Because RSPA apparently does not have jurisdiction over the
permanent storage tanks, the Interim Final Rule does not seek to
address the most significant failure connected with the release at
Sanford, North Carolina.
There is absolutely no evidence that the event at Sanford could
not have been prevented by the improved training, hose testing and
system inspection requirements proposed by NPGA in its Application
for an Emergency Exemption and subsequently adopted by RSPA in its
Interim Final Rule.

The Other Incidents Cited By RSPA

In addition to the Sanford incident, RSPA cites to six other
unrelated incidents involving propane ignition and tragic
fatalities. Based in large part on these six unrelated incidents,
RSPA promulgated the Interim Final Rule without notice and comment
to prevent the ``grave consequences'' of an accidental release of
propane. Significantly, RSPA failed to cite a single instance of a
documented failure of an emergency discharge control system on a
cargo tank motor vehicle resulting in an explosion, fire, injury or
loss of life in the Interim Final Rule. The unrelated six incidents,
as listed by RSPA in the Interim Final Rule, are as follows:
On July 25, 1962 in Berlin, NY, an MC 330 bulk
transport ruptured releasing about 6,900 gallons of liquid propane.
Ignition occurred. Ten persons were killed, and 17 others were
injured. Property damage included total destruction of 18 buildings
and 11 vehicles.
On March 9, 1972 near Lynchburg, VA, an MC 331 bulk
transport overturned and slid into a rock embankment. The impact
ruptured the tank's shell releasing about 4,000 gallons of liquid
propane. Ignition occurred. Two persons were killed and five others
were injured. Property damage included a farmhouse, outbuildings and
about 12 acres of woodland.
On April 29, 1975, near Eagle Pass, Texas, an MC 330
bulk transport struck a concrete headwall and ruptured releasing
more than 8,000 gallons of liquefied petroleum gas. The ensuing fire
and explosion killed 16 persons, injured 51, and destroyed 51
vehicles.
On February 22, 1978, 23 tank cars derailed in Waverly,
Tennessee. During wreck-clearing operations, a 30,000 gallon tank
car containing liquefied petroleum gas ruptured. The ensuing fire
and explosion killed 16 persons, injured 43, and caused $1.8 million
in property damage.
On December 23, 1988, in Memphis, Tennessee, an MC 330
bulk transport struck a bridge abutment and ruptured releasing 9,388
gallons of liquefied petroleum gas. The ensuing fire and explosion
killed eight persons and injured eight.
On July 27, 1994, in White Plains, New York, an MC 331
bulk transport struck a column of an overpass and ruptured releasing
9,200 gallons of propane. Ignition occurred. The driver was killed,
23 people were injured, and an area within a radius of approximately
400 feet was engulfed in fire. (62 FR 7639.)
In five of the above listed incidents, a cargo tank motor
vehicle was involved in a serious accident resulting in a ruptured
tank and subsequent ignition of the propane gas. While tragic
examples of highway accidents, none of these incidents would have
been avoided or minimized in any manner by the new requirements of
the Interim Final Rule or an improved emergency discharge control

[[Page 44052]]

system. More specifically, the additional attendance requirement in
Sec. 171.5(a)(1)(iii) could not have prevented or helped to prevent
these tragic accidents.⁶
---------------------------------------------------------------------------

\6\ Indeed, if the Interim Final Rule had been in effect at the
time of these five accidents, a second person likely would have been
riding along with the driver of the cargo tank motor vehicle at the
time of the accident because of the additional attendance
requirement for the unloading of propane. Simply stated, the Interim
Final Rule would have increased, not decreased, the loss of life in
each incident cited by RSPA.
---------------------------------------------------------------------------

Finally, the sixth incident listed by RSPA, the February 22,
1973, accident in Waverly, Tennessee, involved rail tank cars, not
cargo tank motor vehicles, and thus is completely unrelated to the
Interim Final Rule. In fact, the rupture in this particular case did
not even occur until wreck-clearing operations had commenced. Again,
there is absolutely no evidence that this rail accident, or the five
other above listed accidents, could have been prevented to any
extent by the wholly unrelated requirements in the Interim Final
Rule.

This Petition for Reconsideration Meets the Standard Set Forth in 49
CFR 106.35(a)

The petition for reconsideration meets the standard set forth in
49 CFR 106.35(a) in that the challenged provision is not reasonable,
practicable, nor consistent with the public interest.

The Additional Attendance Requirement Is Not Reasonable

The Administrative Procedure Act (``APA''), 5 U.S.C.
Sec. 706(2)(A) provides that an agency's actions in promulgating
rules may be set aside if ``arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law.'' ⁷
In order to withstand a challenge that one of its rules is arbitrary
or capricious, an agency ``must examine the relevant data and
articulate a satisfactory explanation for its action including a
`rational connection between the facts found and the choice made.'
'' ⁸ Thus, courts will scrutinize whether relevant data
was taken into consideration by the agency when it fashioned its
regulatory requirements.⁹ Additionally, reviewing courts
will give increased deference (1) to an agency depending on its
degree of persuasiveness of the agency's rationale for a rule and
(2) to a long-standing rule.¹⁰
---------------------------------------------------------------------------

\7\ See also Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 414 (1971); Bowman Transportation, Inc. v. Arkansas Best
Freight System, Inc., 419 U.S. 281 (1974).
\8\ Motor Vehicle Manufacturers Association of the United
States, Inc. et al. v. State Farm Mutual Automobile Insurance Co.,
et al., 463 U.S. 29, 43 (1983) citing Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962).
\9\ The Court in Motor Vehicle Mfgr. Assoc. noted ``[n]ormally,
an agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.'' 463 U.S. at 43.
\10\ Visiting Nurse Association of North Shore, Inc. v. Bullen,
et al., 93 F.3d 997, 1007 (1st Cir. 1996); Bowen v. American Hosp.
Ass'n., 476 U.S. 610, 64 n. 34; Mayburg v. Sec. Of Health and Human
Services, 740 F.2d 100, 106 (1st Cir. 1984).
---------------------------------------------------------------------------

The new requirement added to Section 171.5(a)(1)(iii) by the
Interim Final Rule is not reasonable in that the economic burdens it
will place on the industry are not justified by the industry's
safety record and are not reasonably tailored to remedy the problems
identified by RSPA in its preamble to the Interim Final Rule, and
the explanantion provided by the agency does not provide a rational
connection between the facts found and the choices made. The six
incidents other than Sanford cited by RSPA in the Interim Final Rule
still would have occurred if the additional attendance requirement
was in effect. Conversely, there is no evidence to suggest that the
Sanford incident would not have been prevented by a combination of
the improved training, hose testing, system inspection and
qualification requirements contained in the Interim Final Rule and a
requirement that the vehicle driver be continually in attendance and
control of the loading and unloading operations. Thus, RSPA has
``offered an explanation for its decision which runs counter to the
evidence before the agency.'' ¹¹ There is simply no
evidence that having additional service personnel at each unloading
would have prevented any of the incidents identified and cited by
RSPA in its Interim Final Rule.¹² In sum, the severe
economic consequences of the challenged requirement are not
reasonably related to the goals cited by RSPA.
---------------------------------------------------------------------------

\11\ Motor Vehicle Mfgr. Assoc., supra., at 43.
\12\ See American Horse Protection Assoc. v. Lyng, 812 F.2d 1
(D.C. Cir. 1987) (agency's decision set aside where agency failed to
consider evidence which demonstrated that the factual presumptions
upon which the agency's decision was based were inaccurate).
---------------------------------------------------------------------------

The Cost/Benefit Analysis Defies Common Sense

An agency's rulemaking must be tailored to address the problem
at hand, and the economic burden to the regulated industry must bear
some reasonable relationship to the goal of the regulation. In this
case, it is obvious that RSPA either did not consider or determined
to disregard the unjustified and unnecessary economic burden on the
propane industry. While the propane industry is working diligently
to develop, manufacture and retrofit a new emergency discharge
control system for cargo tank motor vehicles, operators of all tank
transport trucks and bobtails will need to recruit, hire, train and
pay new employees to meet the additional attendance requirement in
the Interim Final Rule if it is allowed to stand.
The economic impacts of the additional attendant requirement are
extremely onerous for the propane industry and its customers. Based
on a representative survey of its members, NPGA estimates the cost
of compliance with the additional attendance requirement to be $660
million, taking into account costs associated with employee
recruitment, function specific training, salary, and employee
benefits.¹³ This figure represents a potential increase
of .07 cents per gallon to the consumer. Even according to the
conservative estimates in the Government's Preliminary Regulatory
Evalution for the Interim Final Rule filed in Docket No. HM-225 on
March 19, 1997, the aggregate cost to the propane industry for a
second operator to comply with the additional attendance requirement
in Sec. 171.5(a)(1)(iii) is $237,017,143 annually.¹⁴
---------------------------------------------------------------------------

\13\ Based on 1995 retail sales volume of 9,429,570 gallons
multiplied by $.07 per gallon.
\14\ The estimate on its face is faulty. On page 16 of the
Preliminary Regulatory Evaluation, RSPA concludes that only bobtails
will be required to hire a second attendant to remain with the
bobtail throughout the entire day of deliveries. RSPA apparently
hypothesizes that the only increased costs for the larger tank
transport trucks will be the use a second attendant during the two
hours of actual unloading at a total hourly rate of $13.38. RSPA
apparently makes the unsupported assumption that the larger tank
transports will be able to hire a qualified and trained individual
at the point for unloading and be able to compensate that individual
for only two hours work. This assumption is further undermined by
the fact that it is common practice in the industry for deliveries
to be made in the evenings and on weekends so as not to disturb the
operations of the recipient. As there would not ordinarily be anyone
else on site at these times, there would necessarily have to be a
second person riding in the truck, or someone would have to be hired
at overtime wages to attend the transfer during the evening or on
the weekend period.
---------------------------------------------------------------------------

The extraordinary compliance costs estimated by both NPGA ($660
million) and RSPA (almost $240 million) as a result of the
additional attendant requirement in the Interim Final Rule stand in
sharp contrast to the proven safety record of the propane industry
over many years. In the Interim Final Rule, RSPA cites to only 9
incidents of releases relating to the emergency discharge control
systems on cargo tank motor vehicles, none of which resulted in any
fatalities. RSPA also cites to 6 tragic incidents that are wholly
unrelated to emergency discharge control systems on cargo tank motor
vehicles. Even in the Government's Preliminary Regulatory
Evaluation, RSPA's search of the DOT's Hazardous Materials Incident
Reporting System (``HMIS'') found only 16 reports of propane
releases, which may or may not be related in any way to emergency
discharge control systems, from 1990 to 1996. Those 16 releases
averaged 3,109 gallons of propane¹⁵--and there were no
fatalities and only 2 serious and 2 minor injuries resulting in
total damages of $932,166.
---------------------------------------------------------------------------

\15\ The chart containing this information on page 4 of the
Preliminary Regulatory Evaluation acknowledges that the estimated
high amount of any single release was 40,000 gallons, which included
the 30,000 gallons released from the two storage tanks during the
Sanford event. Discounting the 30,000 gallons from that event, which
was completely unrelated to any failing of an emergency control
system on the cargo tank motor vehicle, the average per release
decreases from 3,109 (49,744/16) gallons to 1,234 (19,744/16)
gallons. This reduction would reduce greatly the annual cost
calculation for Alternative 1 (``do nothing'') and Alternative 2
(``temporarily withdraw the requirement for emergency discharge
system'') in the Government's Preliminary Regulatory Evaluation.
---------------------------------------------------------------------------

Most significantly, the Government's own analysis of the
aggregate total costs to society from releases of propane as a
result of a

[[Page 44053]]

decision not to implement any changes or new regulatory requirements
is between $322,192 to $1,520,705 annually.¹⁶ Simply
stated, according to the Government's own estimates, complete
Government inaction (e.g., no Interim Final Rule) on the issue of
emergency discharge control systems on cargo tank motor vehicles
would result in an annual total cost below $1.5 million. Moreover,
the Government's analysis demonstrates that a total suspension of
the regulatory requirement for an emergency discharge control system
on cargo tank motor vehicles would result in essentially the same
relatively low range of cost to society--between $322,192 to $1.5
million. Because the additional attendance requirement has not been
demonstrated to rectify any specific safety problem and its
imposition is wholly unsupported by the incidents cited by RSPA in
its Interim Final Rule, the requirement cannot be justified in light
of the incredible increase in costs to the industry ($240 to $660
million) compared to costs to society from Government inaction
($322,192 to $1.5 million).
---------------------------------------------------------------------------

\16\ As stated above, this calculation would decrease due to the
Government's overestimate of the average number of gallons released
in the 16 reported incidents.
---------------------------------------------------------------------------

Finally, NPGA submits that the additional attendance requirement
in Sec. 171.5(a)(1)(iii) will result in additional deaths and
increased costs to society based on the incidents cited by RSPA in
its Interim Final Rule. Of the five cargo tank motor vehicle
accidents cited by RSPA, an attendant passenger could not have
prevented the accidents and likely would have died in each case.
Using the Government's own estimates of $2.7 million for the value
of a single life from the Preliminary Regulatory Evaluation, those
five additional deaths would have resulted in $13.5 million
increased aggregate costs to society from that requirement. These
additional deaths and increased costs are certainly not warranted by
the wholly undocumented and questionable benefits.
The overwhelming economic evidence cited above should not be
construed in any manner to indicate a lack of concern by NPGA about
safety in the propane industry. NPGA and its members are committed
to the safe loading and unloading of propane gas from cargo tank
motor vehicles under all conditions. Moreover, we are not arguing
that regulations that increase safety cannot increase costs for the
regulated industry and its customers. But in this particular case,
the additional attendance requirement is not based on any evidence
that the requirement is reasonable, necessary, practicable and
consistent with the public interest. Simply stated, the additional
attendance requirement is regulatory overkill and an enormous burden
on the propane industry and its customers without any demonstrated
benefits to society.

The Additional Attendance Requirement Is Not Practicable

NPGA and its members additionally seek reconsideration of
Section 171.5(a)(1)(iii) of the Interim Final Rule in that
compliance with this requirement is not practicable.¹⁷
---------------------------------------------------------------------------

\17\ At the March 20, 1997 Public Meeting, the issue was raised
as to the requirements now contained in 49 CFR Sec. 177.834(i)(3)
that an attendant have an unobstructed view of the cargo tank and be
within 7.62 meters (25 feet) of the cargo tank. Paragraph
177.834(i)(5) provides that the delivery hose, when attached to the
cargo tank, is considered part of the vehicle. Under this
definition, an attendant monitoring the delivery within 25 feet of
the delivery hose would be in compliance with the previous section
of the regulations.
---------------------------------------------------------------------------

First, in addition to the costs of adding a second attendant
described above, two attendants may be insufficient to meet the
letter of the provisions for the majority of bobtail deliveries.
Approximately half of the piping on a bobtail delivery truck is
underneath the cargo tank between the vehicle chassis frame rails.
The piping therefore may not be in view of someone standing beside
the vehicle. Thus, to comply literally with the provisions of the
Rule, one attendant must be under the truck and a second attendant
must be at the remote control on the internal valve, in order to
have all the discharge system in view during the transfer operation.
These two attendants are, of course, in addition to the third,
principal delivery person, who would attend the transfer of product.
The economic impact outlined above therefore would be doubled.
Second, the recruiting, hiring and training of the additional
attendants required by this new requirement makes the rule not
practicable. The Interim Final Rule, by its very terms, is temporary
in nature. Nonetheless, the rule mandates a lengthy process of
recruiting, hiring and training, some of which may not be completed
by the end of the temporary period on August 15, 1997. Moreover, the
extremely high fixed costs for such a process in light of the
temporary nature of the rule magnifies that the rule is not
practicable. Finally, NPGA submits that the arm's reach requirement
now contained in Section 171.5(a)(1)(iii) violates the National Fire
Prevention Association (``NFPA'') 58's requirement for separation of
the receiving tank and source, further rendering the provision
impracticable in that compliance with the Interim Rule may cause
violation of applicable fire code provisions.

The Additional Attendance Requirement Is Contrary to the Public
Interest

An agency is to consider the important aspects of a problem in
fashioning a rule.¹⁸ Here, RSPA has failed to address
several key aspects of the issue presented and, as a result, has
promulgated a rule that is contrary to the public interest. Although
RSPA may promulgate rules for the safe transport of hazardous
materials, such rules cannot properly be issued where the burden and
impact on the public is not warranted or has not been considered in
light of its tangible benefits.
---------------------------------------------------------------------------

\18\ Motor Vehicle Manufacturers Association, 463 U.S. at 43.
---------------------------------------------------------------------------

The public interest will not be served by enforcement of the
additional attendance requirement in that the economic burden of
compliance will disproportionately impact small business. As noted
above, RSPA estimates that at least 90 percent of the businesses
impacted by the Interim Final Rule are small businesses under the
Small Business Administration's size standard definitions (62 FR
7646). Thus, the largest percentage by far of the estimated $660
million in compliance costs will be borne by small businesses.
Because the cost of an additional attendant will be a huge fixed
cost and small businesses will have less revenue to absorb this new
fixed cost, it is likely that many of these small businesses will
cease to exist. The loss of these small businesses will result in
higher unemployment and will have a very real and direct impact on
their communities. Moreover, to the extent that small businesses are
able to survive, they will pass these costs on to the consumer.
Unnecessary higher costs for all consumers of propane gas is also
contrary to the public interest.
The preamble to the Interim Final Rule specifically seeks
comment as to whether there are alternatives to the Final Rule that
accomplish RSPA's objectives, while at the same time imposing less
of an impact on small businesses. NPGA strongly believes that the
Interim Rule's testing, training, and qualification requirements,
together with the requirement that the vehicle driver be continually
in attendance and control of the loading and unloading operations,
meet RSPA's objectives, while at the same time preserving the
continued economic viability of the small businesses comprising the
majority of this industry.

Request for Relief

NPGA seeks expedited reconsideration of the additional
attendance requirement added by the new provisions of
Sec. 171.5(a)(1)(iii) to existing part 171 of Title 49, Code of
Federal Regulations, by the Interim Final Rule. The additional
attendance requirement, which effectively mandates the physical
presence of a second attendant during the unloading of a cargo tank
motor vehicle, imposes unreasonable and unnecessary financial
burdens on the affected industry, and is not in the public interest
in that it is not reasonably tailored to achieve the safety results
at which it is aimed. NPGA further submits that the requirement will
have a disproportionate and irreparable adverse effect on small
businesses nationwide. As a result, the NPGA respectfully requests
that the Administrator stay the effectiveness of the additional
attendance requirement in Sec. 171.5(a)(1)(iii) pending a decision
on this Petition.
For the reasons cited above, NPGA petitions RSPA to reconsider
the additional attendance requirement in the Interim Final Rule. As
an alternative, NPGA recommends the language from our Application
for Emergency Exemption requiring that ``[t]he driver will be
continually in attendance and control of the loading and unloading
operations.''

Conclusion

For the foregoing reasons, NPGA, on behalf of its members,
petitions RSPA to reconsider Section 171.5(a)(1)(iii) of its Interim
Final Rule, and to stay the effectiveness of this

[[Page 44054]]

provision during its consideration of our petition. In the event
RSPA denies this petition, we request that it be converted to a
petition for rulemaking to amend this provision under 49 C.F.R.
Sec. 106.31.
Please do not hesitate to contact us in the event RSPA requires
further information to process this petition.

Respectfully submitted,
Mary Beth Bosco, Eric A. Kuwana,
Counsel for the National Propane Gas Association.

Attachments

Attachment A.--Propane Tank Truck Deliveries
[1986-1995]
----------------------------------------------------------------------------------------------------------------
Number of Scheduled
Propane fuel Number of bobtail transport commercial
Year sales 1,000 deliveries deliveries airline
gallons represented represented departures
----------------------------------------------------------------------------------------------------------------
1986...................................... 7,999,283 26,664,277 888,809 ...........
1987...................................... 8,299,830 27,666,100 922,203 ...........
1988...................................... 8,484,351 28,281,170 942,706 ...........
1989...................................... 9,763,059 32,543,530 1,084,784 ...........
1990...................................... 8,281,606 27,605,353 920,178 ...........
1991...................................... 8,611,571 28,705,237 956,841 ...........
1992...................................... 9,217,256 30,724,187 1,024,140 ...........
1993...................................... 9,483,509 31,611,697 1,053,723 ...........
1994...................................... 9,452,588 31,508,627 1,050,288 ...........
1995...................................... 9,429,570 31,431,900 1,047,730 7,700,000
---------------------------------------------------------------------
Total............................... 89,022,623 296,742,077 9,891,403 7,700,000
---------------------------------------------------------------------

(1) Total Deliveries--306,633,479
----------------------------------------------------------------------------------------------------------------

Attachment B.--Sales of Propane by Principal Fuel Uses, 1986-1995
[1,000 Gallons]
----------------------------------------------------------------------------------------------------------------
Residential
Year and Industrial Engine fuel Farm Other \2\ Total
commercial \1\
----------------------------------------------------------------------------------------------------------------
1986............................ 4,368,591 1,614,711 654,168 1,131,905 229,908 7,999,283
1987............................ 4,837,271 1,387,696 629,848 1,075,463 369,552 8,299,830
1988............................ 4,806,779 1,695,978 582,749 1,063,537 335,308 8,484,351
1989............................ 5,388,742 1,709,440 581,155 1,172,811 910,911 9,763,059
1990............................ 4,974,632 1,340,196 531,325 1,135,712 299,741 8,281,606
1991............................ 5,324,740 1,287,077 542,064 1,133,539 324,151 8,611,571
1992............................ 5,213,548 1,918,169 500,092 1,363,327 222,120 9,217,256
1993............................ 5,460,571 1,914,762 500,278 1,383,022 224,876 9,483,509
1994............................ 5,375,245 2,032,765 507,193 1,405,033 132,352 9,452,588
1995............................ 5,513,207 1,994,819 466,636 1,322,556 132,352 9,429,570
-------------------------------------------------------------------------------
Total....................... ........... ............. ........... ........... ........... 89,022,623
----------------------------------------------------------------------------------------------------------------
\1\ Includes refinery fuel use, synthetic rubber manufacture, and gas utility.
\2\ Includes secondary recovery of petroleum and SNG feedstock.
Source: American Petroleum Institute.

Appendix B--Ferrellgas et al. Petition for Reconsideration of Interim
Final Rule

April 21, 1997

The Honorable Dharmendra K. Sharma,
Administrator, Research and Special Programs Administration, U.S.
Department of Transportation, 400 7th Street, SW, Room 8410,
Washington, DC 20590.

Dear Administrator Sharma: On March 21, 1997, Ferrellgas, LP.,
Suburban Propane, L.P., AmeriGas Propane L.P., Agway Petroleum
Corporation, and Cornerstone Propane Partners, L.P., (collectively
``Petitioners'') filed a Petition for Reconsideration pursuant to 49
CFR 106.35 seeking modification of an emergency interim final rule
published at 62 FR 7638 (February 19, 1997). By this letter,
National Propane, L.P., seeks to join in that Petition as a party.
With the addition of National Propane, L.P., Petitioners include six
of the eight largest propane service companies in the Nation. In
addition to adding National Propane as a party, Petitioners seek to
supplement their pending petition with the following supplemental
cost benefit information to assist you in the evaluation of their
Petition.
As discussed in their pending Petition, Petitioners' specific
concern is with an operator attendance requirement imposed as an
element of an interim compliance option provided under the emergency
rule. The operator attendance requirement in question was designed
specifically to address the risk that the automatic excess flow
feature on an MC 330, MC 331 or non-specification cargo tank vehicle
in liquefied compressed gas service may fail to operate as required
under 49 CFR 178.337-11(a) during product unloading. Under 49 CFR
178.337-11(a), the automatic shut-off systems in question are
required to function only ``in the event of a complete failure
(separation) of any attached hoses or piping,'' not ``in response to
leaks or partial failure of a pipe, fitting, or hose.'' 62 FR 7638
at 7643 col. 2 (February 19, 1997). The risk addressed by this
operator attendance requirement is thus the risk that: (1) A
complete separation of attached hoses or piping will occur; (2) that
such separation will occur during product unloading (when the
attendance requirement applies); and (3) that the automatic excess
flow feature will not actually function as required. Because
Petitioners are concerned principally with the operator attendance
requirement as it applies to bulk tank vehicles (bobtails),
Petitioners have attempted to quantify the magnitude of this risk in
the bobtail context.

[[Page 44055]]

Based on RSPA's suggestion that nine events involving the
failure of automatic excess flow features have occurred in bobtail
service over the last seven years,\1\ the likelihood of such an
event occurring during a bobtail delivery is extremely remote: on
the order of one in 35,000,000 based on calculations presented in
Petitioners' Petition for Reconsideration. Nevertheless, RSPA
Officials have expressed concern that its own data may be
underinclusive, and that the actual risk of such an event might
therefore be higher.
---------------------------------------------------------------------------

\1\ It should be noted that Petitioners are not aware of any
documented basis for this suggestion.
---------------------------------------------------------------------------

In an effort to address this concern, Petitioners have attempted
to identify any incidents in the course of their own operations in
which an excess flow feature failed (or may have failed) to operate
after a complete separation of attached hoses or piping occurred
during the unloading of a bobtail vehicle. In this effort,
Petitioners have examined their safety and insurance records, and
have consulted with employees who would be expected to be aware of
any such instances that may have occurred. In most cases,
documentary information was found to be available going back at
least three years, and employees were identified who could be
expected to be aware of any incidents that may have occurred within
the last decade (in several cases, the employees consulted had a
knowledge base going back several decades). As a result of these
efforts, Petitioners collectively have been able to identify a total
of only three such instances.\2\ Although Petitioners cannot
positively establish that they have identified every such incident
that has occurred in their operations over the last seven years,
they are very confident--based upon the nature and extent of the
inquiries undertaken--that their tally of incidents is not
substantially in error.

\2\ In one of these instances, ignition did not occur and no
injuries or property damage resulted. Petitioners also identified
one instance in which the automatic excess flow feature functioned
immediately upon separation of a hose during a bobtail delivery (no
ignition, injuries, or damage occurred). This latter instance was
not included in Petitioners' incident tally, because the operator
attendance requirement at issue would provide a benefit only in an
instance in which the automatic excess flow feature fails to
function as intended.
---------------------------------------------------------------------------

Because Petitioners collectively operate slightly over one third
of the estimated population of 18,000 bobtails in service
nationwide, their incident rate of three incidents over seven years
could reasonably be extrapolated to a rate of nine incidents over
the same period for the industry as a whole. This is the same number
of incidents that Petitioners assumed in calculating a one in
35,000,0000 incident rate in their Petition for Reconsideration.
Even if it is assumed that the industry-wide incident rate is higher
than the incident rate Petitioners have experienced, the overall
incident rate at issue would still be extraordinarily low.\3\ In
fact, as discussed in Petitioners' Petition for Reconsideration, the
estimated incident rate suggested by the available data would have
to be assumed to be five times higher before it would even approach
the incident rate of passenger deaths per enplanement for the U.S.
commercial aviation transportation system. Petitioners do not
believe that this incremental risk is of sufficient magnitude to
justify the high costs that compliance with the operator attendance
requirement of the emergency rule would entail. Petitioners
accordingly urge RSPA to take prompt and favorable action on their
pending Petition by modifying the operator attendance requirement of
the emergency rule appropriately.
---------------------------------------------------------------------------

\3\ It should further be noted that this low risk reflects the
risk that a release will occur, whether or not there is any ignition
of the gas released. See Footnote 2.
---------------------------------------------------------------------------

Please let me know if you have any questions or if additional
information would be helpful.

Sincerely,
Walter B. McCormick, Jr.

cc: Alan I. Roberts
Docket No. RSPA-97-2133 (HM-225)

March 31, 1997

Mr. Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Department
of Transportation, 400 7th Street, SW, Mail Code: DHM-1, Washington,
DC 20590.

Dear Mr. Roberts: This letter responds to your request for
specific suggested regulatory language designed to address the
concerns raised in the Petition of Ferrellgas, L.P., Suburban
Propane, L.P., AmeriGas Propane L.P., Agway Petroleum Corporation,
and Cornerstone Propane Partners, L.P., (collectively
``Petitioners'') for reconsideration of RSPA's emergency interim
final rule published at 62 FR 7638 (February 19, 1997).
We did not suggest specific regulatory language in our Petition
for Reconsideration because we believe that our concerns could
appropriately be addressed through a variety of different changes in
regulatory language. For example, Petitioners would fully support
adoption of the regulatory language suggested on page 2, footnote 1
of the Petition for Reconsideration filed with respect to the same
emergency rule by the National Propane Gas Association.
Alternatively, Petitioners would be satisfied if new Section
171.5(a)(1)(iii) were amended to read as follows:

``In addition to the attendance requirements in Sec. 177.834(i)
of this subchapter, the person who attends the unloading of a cargo
tank vehicle must, except as necessary to facilitate the unloading
of product or to enable that person to monitor the receiving tank,
remain within an arm's reach of a remote means of automatic closure
(emergency shut-down device) of the internal self-closing stop
valve.''

If neither of these suggested regulatory amendments is
acceptable to the Agency, Petitioners would be satisfied with any
alternative regulatory amendment that would reasonably meet their
needs as articulated in their Petition for Reconsideration. It
should be emphasized, however, that Petitioners' need for relief is
most urgent. As the attached documents demonstrate, local
authorities are already beginning to enforce the requirements of the
emergency rule at issue, a factor that is exacerbating the already
impossible problems Petitioners face under that rule. Accordingly,
we urge RSPA to provide appropriate relief in some form as quickly
as possible.
As we have discussed, Petitioners would appreciate the
opportunity to meet with the Agency to discuss their Petition, to
provide supplementary information, and to discuss any questions or
concerns you or your staff may have. In the interim, we hope that
this clarification of the relief we seek is useful.
Thank you for the personal attention you have paid to this
important matter.

Sincerely,
Barton Day,
Counsel for Petitioners Ferrellgas, L.P., Suburban Propane, L.P.,
AmeriGas Propane L.P., Agway Petroleum Corporation, and Cornerstone
Propane Partners, L.P.

Attachment

March 21, 1997

The Honorable Dharmendra K. Sharma,
Administrator, Research and Special Programs Administration, U.S.
Department of Transportation, 400 7th Street, S.W., Room 8410,
Washington, DC 20590.

Dear Administrator Sharma: Enclosed pursuant to 49 CFR 106.35 is
a Petition for Reconsideration of the emergency interim final rule
published at 62 FR 7638 (February 19, 1997). This petition is being
filed on behalf of Ferrellgas, L.P., Suburban Propane, L.P.,
AmeriGas Propane L.P., Agway Petroleum Corporation, and Cornerstone
Propane Partners, L.P., (collectively ``Petitioners''). Petitioners
are five of the eight largest propane service companies in the
United States, and together they serve over 3,000,000 customers
across all fifty states.
The emergency rule that is the subject of this Petition was
promulgated in response to information suggesting that the excess
flow control valve designs currently in use on specification MC 330,
MC 331, and certain non-specification cargo tank vehicles used to
transport propane may not satisfy the requirements of 49 CFR
178.337-11(a). As Petitioners understand it, the purpose of this
emergency rule was to provide a safe alternative means of compliance
that would allow continued operation of such vehicles on an interim
basis while a long-term solution to this problem is identified and
implemented. Unfortunately, it appears that modification of certain
operator attendance provisions included in the emergency rule, is
necessary in order for the rule to achieve its intended purpose. The
basic problem is that immediate compliance with the operator
attendance requirement of the emergency rule, as currently written,
does not appear to be possible. In fact, it is reasonable to
question whether full compliance with these interim requirements
could realistically be expected much before the interim compliance
period is scheduled to end, on August 15th 1997. In addition, it
appears that these requirements would not be reasonable interim
compliance measures even if they could be implemented relatively
quickly.

[[Page 44056]]

Petitioners believe that prompt modification of these requirements
is necessary to ensure that the requirements of the interim
compliance option provided are reasonably achievable on an interim
basis.
Petitioners appreciate the constructive manner in which RSPA has
responded to the issues underlying the emergency rule, and look
forward to working with your staff cooperatively in order to resolve
the concerns raised in the Petition.

Sincerely,
Walter B. McCormick, Jr.

Enclosure
cc: Judith S. Kaleta, Chief Counsel, Alan I. Roberts, Associate
Administrator for Hazardous Materials Safety, Docket No. RSPA-97-
2133 (HM-225)

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

In Re: Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service; Interim Final Rule

62 FR 7638 (February 19, 1997)

[Docket No. RSPA-97-2133 (HM-225)]

Petition of Ferrellgas, L.P., Suburban Propane, L.P., Amerigas Propane,
L.P., Agway Petroleum Corporation and Cornerstone Propane Partners,
L.P. for Reconsideration of RSPA's February 19, 1997 Interim Final Rule

Pursuant to 49 CFR 106.35, Ferrellgas, L.P., Suburban Propane,
L.P., AmeriGas Propane L.P., Agway Petroleum Corporation, and
Cornerstone Propane Partners, L.P., (collectively ``Petitioners'')
hereby petition for reconsideration of the emergency interim final
rule published at 62 FR 7638 (February 19, 1997). The emergency rule
was promulgated in response to information suggesting that the
excess flow control valve designs currently in use on specification
MC 330, MC 331, and certain non-specification cargo tank vehicles
used to transport propane may not satisfy the requirements of 49 CFR
178.337-11(a). The purpose of the emergency rule, as explained at
RSPA's March 4, 1997 Workshop concerning the rule, was to provide a
safe alternative means of compliance that would allow continued
operation of such vehicles on an interim basis while a long-term
solution to this problem is identified and implemented. Petitioners
appreciate the Agency's prompt efforts to achieve this critical
objective, and support most of the requirements of the interim
compliance option provided under the emergency rule. Unfortunately,
however, the interim compliance option RSPA has provided includes
new operator attendance requirements that are unreasonable,
impracticable, and are not in the public interest. In fact, it
appears that immediate compliance with these requirements is
impossible, and that there is some basis to question whether efforts
to comply might do more to increase than to decrease the overall
risks associated with propane delivery, especially in the short
term.
To adequately protect the public interest, Petitioners urge RSPA
to take immediate action to modify the new operator attendance
requirements of its interim final rule so as to provide a reasonable
and practicable interim means of compliance for operators of the
cargo tank vehicles at issue. Such action is necessary because,
although automatic systems that should satisfy RSPA's expectations
under 49 CFR 178.337-11(a) are already under development, there
appears to be no immediate way for the propane industry to comply
either with the requirements of the interim final rule or with the
requirements of 49 CFR 178.337-11 as RSPA interprets them. As RSPA
itself has recognized, unachievable regulatory requirements for
propane delivery are unacceptable because any interruptions in
propane service would expose members of the public to ``unacceptable
threats to their safety and economic interests.'' \4\ Such
requirements are particularly inappropriate in this case, because
there is no evidence of any safety crisis that would justify them.
To the contrary, the conditions of concern to RSPA have existed
continuously over many years--and over the course of hundreds of
millions of propane deliveries--apparently without any significant
pattern of problems having occurred. In fact, based on the
information cited by the Agency itself, it seems clear that the
incremental risk at issue is extraordinarily low. It is therefore
imperative that some reasonably practicable interim means of
compliance be provided for the propane industry. It is also
important to ensure that this interim means of compliance will
provide positive safety benefits.
---------------------------------------------------------------------------

\4\ Preliminary Regulatory Evaluation, Docket HM-225, Cargo Tank
Motor Vehicles in Liquified Compressed Gas Service (February 1997)
at p. 6.
---------------------------------------------------------------------------

Introduction

Petitioners are the first, second, third, fifth, and eighth
largest propane service companies in the United States. Together
they provide service to some 3,039,000 customers in all fifty
states. Petitioners operate approximately 690 transports and 5,950
bulk trucks (bobtails) of the type that are the subject of the
emergency rule at issue.
Petitioners understand RSPA's concern over the suggestion that
the excess flow control valves currently in use on such vehicles may
not satisfy the requirements of 49 CFR 178.337-11. Petitioners are
committed to the highest level of safety in the conduct of their
business, and would like to work in partnership with RSPA to address
this concern. As announced at RSPA's March 4th Workshop, it appears
that at least one automatic system that should satisfy RSPA's
expectations has already been devised,\5\ and Petitioners are aware
that other such systems are also currently under development. The
problem is that it will take a significant amount of time to more
fully test such systems, to get them into commercial production, and
to retrofit existing vehicles. Until this process can be completed,
a reasonable option for interim compliance must be available.
---------------------------------------------------------------------------

\5\ A copy of the announcement issued by A-B Products, Inc. on
March 3, 1997 is provided as an attachment to this Petition.
---------------------------------------------------------------------------

Since the emergency rule was published, Petitioners have made
diligent efforts to understand and implement the requirements of the
interim compliance option RSPA provided.
Specifically, Petitioners have augmented their safety procedures
and operator training, and are in the process of testing potential
engineering options both for interim and long-term compliance.
Unfortunately, it appears that immediate compliance with the new
vehicle attendance requirements of this option is not possible, and
that longer-term compliance would not be reasonable. Because the
emergency rule provides neither a grace period for compliance nor
any reasonable means by which Petitioners can achieve compliance in
the near future, it leaves Petitioners in an impossible position
from which they require immediate relief. Accordingly, Petitioners
urge RSPA to act immediately to modify the vehicle attendance
requirements of its emergency rule as necessary to provide a
reasonably practicable interim compliance option that will, if
implemented, provide positive safety benefits.

Discussion

I. It Is Imperative That RSPA Provide a Reasonable and Practicable
Compliance Option for the Propane Industry

A. Continued Propane Service Is Vital to the Public

Millions of Americans are dependent on propane for their basic
energy needs. Consequently, as RSPA has acknowledged, any
interruptions in propane service would expose the public to
``unacceptable threats to their safety and economic interests.'' \6\
To protect the public interest, it is therefore vital to ensure that
propane service companies such as Petitioners have some practicable
and lawful means of continuing their operations.
---------------------------------------------------------------------------

\6\ Preliminary Regulatory Evaluation, Docket HM-225, Cargo Tank
Motor Vehicles in Liquified Compressed Gas Service (February 1997)
at p. 6.
---------------------------------------------------------------------------

B. The Risks at Issue Do Not Justify Stringent Interim Regulation

RSPA's concern is essentially that excess flow control features
on specification MC 330, MC 331 and certain non-specification cargo
tank vehicles used to transport propane or other liquid compressed
gases may not function effectively under all operating conditions.
This concern is based primarily upon one confirmed incident (the
Sanford incident), although the Agency does suggest that nine other
incidents (all involving bobtails) may have occurred over the past
seven years.\7\ At the March 4th Workshop, RSPA officials indicated
that it does not receive reports of all incidents that occur, and
suggested that additional incidents involving the failure of excess
flow control devices may in fact have occurred.
---------------------------------------------------------------------------

\7\ See Preliminary Regulatory Evaluation at 1. Petitioners note
that no documentation concerning these alleged incidents is included
in the administrative record.
---------------------------------------------------------------------------

Although this information is troubling, it is important to
recognize that it is indicative of only an extremely low risk. In
fact, if the suggestion that nine bobtail incidents occurred over a
seven year period is accepted at face value, this would suggest that
the risk

[[Page 44057]]

of an incident involving failure of an excess flow control device
during a bobtail delivery is in the range of one in 35 million.\8\
Even if five times this number of incidents had actually occurred,
the risk of any such incident during a residential propane delivery
would still be significantly lower than the risk of a commercial
airline passenger being killed in an air crash on any single
flight.\9\ While even one accident is too many, these are, by any
reasonable assessment, very low risks indeed.
---------------------------------------------------------------------------

\8\ Assuming nine billion gallons of propane delivered by
bobtail annually, with an average of 200 gallons per delivery, it is
estimated that there were 315 million bobtail deliveries during the
seven year period at issue. If nine incidents are assumed to have
occurred in the course of these 315 million deliveries, the
corresponding incident rate is approximately 0.029 incidents per
million deliveries, for an average of less than one incident in 35
million deliveries.
\9\ Even if the kind of bobtail incidents at issue occurred at
five times the rate of the reported incidents RSPA has referred to,
the incident rate would amount to only about 0.14 incidents per
million bobtail deliveries. By contrast, although commercial
aviation accident rates fluctuate from year to year, the passenger
fatality rate for the ``extremely safe'' U.S. commercial aviation
transportation system has ranged from 0.18 to approximately 0.4
fatalities per million enplanements. National Transportation Safety
Board, A Review of Flightcrew-Involved Major Accidents of U.S.
Carriers, 1978 Through 1990 (NTSB/SS-94/01) (January 1994) at 1-2.
---------------------------------------------------------------------------

Certainly these risks are too low to justify interim regulatory
controls that will impose harsh compliance burdens on the propane
industry.

II. The Emergency Rule Fails To Provide Any Reasonable and
Practicable Compliance Option for the Propane Industry

A. Immediate Compliance With the Alternative Compliance Option Provided
in the Emergency Rule Is Impossible

The alternative compliance option provided in the emergency rule
imposes a number of specific requirements. Several of these--
including certain inspection and testing requirements--are
practicable requirements that provide concrete safety benefits.
Petitioners concern is with a new operator attendance requirement
that effectively requires that the operator ``have an unobstructed
view of the cargo delivery lines, and be within an arm's reach of a
means for closure of the internal self-closing stop valve or other
device that will stop the discharge of product from the cargo
tank.'' 62 FR at 7643 col. 3. RSPA acknowledges that ``this may
require two operator attendants on a cargo tank motor vehicle or the
use of a lanyard, electro-mechanical, or other device or system to
remotely stop the flow of product.'' Id. In fact, it appears that
compliance with this requirement would always require such measures.
One of the principal practical problems is that, in almost all
cases, at least some of the controls that must be activated in the
unloading of product are located out of reach of the controls for
the emergency shut-off system.\10\ Another is that operators must at
least periodically step away from their vehicles during unloading
operations to ensure, for safety purposes, that the receiving tank
is not being overfilled or overpressurized. Immediate compliance
with this new attendance requirement is impossible because none of
the options for compliance--multiple attendants, a lanyard, or some
other remote shut-off system--can be implemented in less than a
matter of months.
---------------------------------------------------------------------------

\10\ In the case of bobtails, the flow of gas is initiated from
a control located on the end of the product delivery hose. Because
bobtails, for safety purposes, are typically located more than 10
feet from the point of product transfer, this control must always be
activated from a position that is out of reach of the controls
located on the truck. In the case of transports, the clutch and
power take off controls necessary for operation of the unloading
pumps are located in the vehicle cab, generally out of reach of the
emergency shut-off system controls, out of sight of the loading
lines, or both.
---------------------------------------------------------------------------

The problem with the multiple attendant option is that
Petitioners do not have enough qualified personnel to send multiple
attendants out on deliveries. To the contrary, Petitioners--being
well-run businesses--do not have substantially more operators than
they need to serve their customers. Nor can Petitioners
substantially increase the workload of the operators they do have;
indeed, regulations limiting hours of service for drivers would
prohibit them from doing so. To provide additional operators,
Petitioners would therefore have to hire them. If Petitioners were
to hire one new employee for each of their approximately 6,600
vehicles, this would amount to more than a 40% increase in the total
work force of these companies.\11\ Hiring programs of this magnitude
would obviously take months to complete, even under the best of
circumstances. Applicants would need to be solicited and
appropriately screened. Once new operators are hired, they would
then need to be appropriately trained before they could be put into
the field. In short, this option is completely unworkable as a near-
term, interim compliance option.
---------------------------------------------------------------------------

\11\ Together, Petitioners have a total of approximately 15,100
employees.
---------------------------------------------------------------------------

Putting aside the question of whether lanyards would function
effectively--which Petitioners contend they would not--the
inescapable problem is that they cannot be deployed quickly. All of
the propane cargo vehicles Petitioners operate are already equipped
with emergency shut-off (ESO) systems. However, Petitioners believe
that substantially all of their ESO controls would have to be
modified or repositioned before lanyard systems could be used
effectively. In most cases the necessary work would need to be
performed by a truck fabricator, and it is estimated that the work
would take a number of months to complete. The specific mechanical
problems are as follows.
Although propane cargo vehicles have ESOs of various different
designs, their basic function is to trip the integral closing
mechanism for an internal stop valve. The manually-controlled
actuating device for the ESO system is normally positioned towards
the front of the vehicle where it is more accessible to the operator
in the event that a release of product occurs towards the rear of
the vehicle where most of the pumping controls and operating valves
are located. These ESO systems are normally operated by a lever or
push-button controller mounted to the truck frame behind the driver
side of the cab. Where levers are used, they are relatively small,
and may be mounted in either a vertical or horizontal position.
Attachment of a lanyard to this type of controller would require a
series of pulleys so as to direct the force of the pull in the
proper direction to actuate the system. On a great many vehicles,
however, the controllers are of a push-button design that cannot
readily be operated by the tug of a lanyard. These systems would
need to be jerry-rigged in some manner or replaced with a lever type
controller before a lanyard system could be attached at all.
Petitioners are actively testing electro-mechanical remote
emergency shut-off systems, but are not aware of any remote control
system that has yet been demonstrated to be fully effective for use
in propane cargo vehicles. The principal engineering challenges are
to ensure that such a device could reliably transmit signals through
metal structures, that it would not itself provide a source of
ignition in the event of a propane release, and that it would be
compatible with the variety of ESO configurations currently in
bobtail service. Even if such devices prove effective, however, it
would clearly take a considerable amount of time to install them in
all of the propane cargo vehicles. In the end, it could potentially
take as long to develop, test, and implement this ``interim''
solution as it would to implement an appropriate final solution. In
any event, it does not appear that immediate compliance with the
alternative compliance option provided in the emergency rule is
possible on any basis at all.

B. Multiple Operator and Remote Activation Options Are Not Reasonable
as Interim Compliance Measures

Even if the multiple operator or remote activation options could
be implemented substantially before the end of the interim
compliance period, Petitioners do not believe that they would
represent reasonable interim compliance measures. The basic problem
is that either option would impose high costs without providing any
commensurate safety benefit.
The multiple employee option would effectively require a very
large but temporary expansion in the work force of propane service
companies. The costs of recruiting, screening, training,
compensating, and then ultimately discharging this large number of
excess employees would be very high. Petitioners estimate that these
costs could exceed $165,000,000.00 just for Petitioners alone,
assuming one new employee for each of Petitioners' 6,600
vehicles.\12\ At the same time, for several reasons, the safety
benefits of this approach can be expected to be limited at best.
First, as already indicated, the risk to be addressed under this
approach is extraordinarily low in the first place, and that risk
would be reduced even further by implementation of the other
requirements of the interim rule, which Petitioners believe would be
highly effective in addressing the risk of uncontrolled propane
releases during

[[Page 44058]]

lading. Second, it would take considerable time to implement this
compliance option. As a result, the window of time during which this
interim compliance option could effectively provide any safety
benefit would be limited. Finally, it should be recognized that it
will be difficult to recruit high-quality employees for interim
jobs, and that the job itself--standing ready to respond to an event
that is extraordinarily unlikely to occur--is not one that should be
expected to induce a high level of performance. Accordingly, it
appears that interim employees might for practical purposes provide
very little safety benefit at all.
---------------------------------------------------------------------------

\12\ Conservatively assuming a total cost of $25,000.00 per
employee for recruiting costs, salary, training, and benefits.
---------------------------------------------------------------------------

As already discussed, the remote activation option would require
physical modification of transport vehicles. Assuming that an
appropriate remote activation system can indeed be made available at
all, significant costs would need to be incurred to purchase and
install the necessary equipment. Petitioners estimate that even a
relatively low-cost system of the garage-door-opener variety, if
available, could not be put to use in Petitioners' 6,600 existing
vehicles for less than about $2,300,000.00. Again, however, for
several reasons, this substantial cost might provide little
practical safety benefit. As already indicated, the risk addressed
would be extremely small, particularly in view of the other
requirements of the emergency rule. This option would also take
considerable time to implement--perhaps nearly as long as an
ultimate solution--and might therefore provide interim protection
for only a very limited period. In addition, it is not clear that
such devices would be capable of operating reliably under real-world
conditions, particularly in cold weather and where obstructions--
especially metallic obstructions such as sheds, vehicles, or
fences--might interfere with signal transmission. Accordingly, it is
not clear that such devices, if put to use, would provide
substantial safety benefits.

C. Requirements To Employ Multiple Operators or Remote Activation
Options Could Potentially Do More To Increase Than To Decrease the
Overall Risks Associated With Propane Delivery

In imposing safety regulation, it is important at a minimum to
ensure that the rules adopted will do no harm. In particular, it is
important to ensure that efforts to address one risk do not
effectively increase other risks. Petitioners believe that there is
legitimate basis to question whether efforts to comply with the
operator attendance requirements of the emergency rule might
actually do more to increase than to decrease the overall risks
associated with propane delivery, particularly in the short term.
Indeed, it appears that those requirements--in attempting to
minimize the risks in the event that an uncontrolled release of
product occurs during unloading--could potentially increase the
overall likelihood that product releases will occur. The basis for
this concern is as follows.
Based on their operational experience, Petitioners believe that
human error--particularly human error in the overfilling of a
customer tank during a bobtail delivery--represents the greatest
risk of a product release associated with unloading operations.\13\
For two reasons, the new operator attendance requirements of the
emergency rule could potentially increase these risks.
---------------------------------------------------------------------------

\13\ Overfilling is an issue of concern because propane tanks
are pressure vessels containing fluid that expands and contracts in
response to ambient temperature variations. In order to ensure that
propane is not released as a result of fluid expansion, it is
necessary to maintain an adequate vapor space within the tank. For
this reason, propane tanks are ordinarily filled only to 80 percent
of their full volume. In the event a tank is filled beyond the
allowable limit, there is a risk that propane may subsequently be
released at some point (often after the operator has left the
customer site). If the tank is filled to its full volumetric
capacity, a resulting release of product will occur during the
unloading process itself. In either case, the safety concerns
involved are serious.
---------------------------------------------------------------------------

The first concern arises with respect to operators that attempt
to achieve compliance through the use of interim employees. As
already indicated, this option would essentially require that large
numbers of new operators be hired, trained, and put into service as
quickly as possible. Petitioners have thorough training programs,
and believe that these programs are effective in minimizing the risk
of human error in the field. Nevertheless, if there is a way to
increase the risk of human error, the compulsion to immediately hire
and deploy large numbers of new interim employees--on what amounts
to an emergency basis--would appear to be it. Petitioners do not
believe that this incremental risk would be substantial, and would
obviously work as hard as possible to ensure that it is not.
Nevertheless, Petitioners believe that the magnitude of this small
incremental risk could very well exceed the magnitude of any
incremental risk reduction the interim employee option would
provide, particularly over the short term.
The second concern arises with respect to propane marketers that
attempt to comply without interim employees. The basic concern is
that the operator attendance requirement of the emergency rule would
frequently have the effect of anchoring operators in positions from
which they will be unable to effectively monitor the tank they are
filling during bobtail deliveries. This is a critical concern,
because monitoring of the customer tank through use of a manual
fixed liquid level valve located on the tank is by far the most
effective way to ensure that uncontrolled product releases will not
occur due to the overfilling of customer tanks. To the extent that
operators are inhibited from monitoring the customer tank by the
need to keep a lanyard taut, to avoid signal interference from a
shed, or for any other reason, the risks associated with the
overfilling of customer tanks is incrementally increased. Again,
Petitioners believe that the magnitude of even a very small
incremental increase in this risk could well exceed the magnitude of
the safety benefit provided by the new operator attendance
requirements.

III. Modified Attendance Requirements Would Provide A Practicable
Basis for Interim Compliance That Would Provide at Least Equivalent
Safety Benefits

As already indicated, Petitioners generally support the interim
requirements of the emergency rule, specifically the interim
requirements for pressure testing of new or modified hose assemblies
and for visual inspection of hoses and hose fittings prior to
unloading. These interim requirements directly address the risk of
catastrophic hose failure--which is the principal risk at issue--and
should provide positive safety benefits.
Petitioners believe that all its concerns regarding the operator
attendance requirements of the emergency rule can be addressed--
without any real sacrifice in safety--if they are modified to
provide additional flexibility for two purposes. First, the operator
should be given the flexibility to step away from the ESO system as
necessary to conduct the unloading operations.\14\ Second, the
operator should be allowed the flexibility to step away from the ESO
system in order to monitor the customer tank. This approach would
effectively ensure that the operator will remain within arms' reach
of the ESO system to the extent it is reasonable to do so, but would
eliminate the need to attempt to deploy multiple operators or remote
activation systems on an interim basis. As modified, the provision
would provide a practicable interim means of compliance that
provides a level of safety that--for practical purposes--is likely
to be at least equivalent to the level of safety the rule now
provides.
---------------------------------------------------------------------------

\14\ This modification would by itself be sufficient to address
Petitioners' concerns with respect to propane transports.
---------------------------------------------------------------------------

Conclusion

For the reasons set forth herein, Petitioners urge RSPA to take
immediate action to modify the vehicle attendance requirements of
its emergency rule as proposed in this Petition to provide a
reasonably practicable interim compliance option that will, if
implemented, provide actual safety benefits.

Respectfully submitted,
Walter B. McCormick, Jr.
Barton Day
Bryan Cave, LLP,
Counsel for Petitioners.
[FR Doc. 97-21865 Filed 8-14-97; 11:58 am]
BILLING CODE 4910-60-P

Visit the Official Version

Document Information

Effective Date:: 8/16/1997
Published:: 08/18/1997
Department:: Research and Special Programs Administration
Entry Type:: Rule
Action:: Final rule; response to petitions for reconsideration.
Document Number:: 97-21865
Dates:: August 16, 1997.
Pages:: 44038-44058 (21 pages)
Docket Numbers:: Docket No. RSPA-97-2133 (HM-225)
RINs:: 2137-AC97: Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Interim Final Rule
RIN Links:: https://www.federalregister.gov/regulations/2137-AC97/hazardous-materials-cargo-tank-motor-vehicles-in-liquefied-compressed-gas-service-interim-final-rule
PDF File:: 97-21865.pdf
CFR: (12): 49 CFR 178.337-11(a).''; 49 CFR 178.337-11(a)(1); 49 CFR 178.337.11(a)(1)(v); 49 CFR 171.5(a)(1)(iii); 49 CFR 177.834(i)(3); More ...