`[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]]

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Part II





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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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

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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:

    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 Sec. 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 Sec. 553(b)(B) and Sec. 553 (d)(3) of the 
APA to forego notice and comment and to issue this rule as an 
interim 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, Sec. 553(b)(B) and Sec. 553(d)(3) of the APA 
authorize 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 preliminary 
regulatory evaluation under Executive Order 12866, RSPA has 
analyzed, based on information currently available to the agency, 
the impact of this rule on all affected parties, including small 
businesses. The preliminary regulatory evaluation is available for 
review in the public docket (62 FR 7646).

    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`