44038 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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 noncompliance, 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 fuelair 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 selfclosing 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 selfclosing 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 selfclosing stop valve as specified in

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

§ 178.337–11(a)(1)(v). Vehicles

unloaded by pressure and conforming to

the requirements of § 178.337–11(a)(1)

are not subject to the temporary

regulations specified in § 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
44040 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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 nonspecification cargo tanks authorized in

§ 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 §§ 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 § 5117 of

the Federal hazardous materials

transportation law, 49 U.S.C. § 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 nonconformance 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
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 44041

transportation of liquefied compressed

gases (principally propane, other

liquefied petroleum gases and

anhydrous ammonia). The IFR was

made effective for a six-month period,

until August 15, 1997, to allow industry

time to develop at least an interim

solution to the problem with emergency

discharge control systems. RSPA and

the FHWA believed that, without the

authorization for continued operation

provided by the IFR, persons who

depend on propane and other liquefied

compressed gases for residential,

industrial, and agricultural purposes, as

well as cargo tank motor vehicle

operators and manufacturers, would be

severely impacted by service

interruptions in these industries.

Because there are no acceptable

alternatives for distributing these

materials to most residences and

facilities served by cargo tank motor

vehicles, RSPA and FHWA believed the

IFR was necessary to avoid other

potentially serious safety and economic

consequences that might have resulted

from an inability to secure these

essential materials.

In order to enhance the level of safety

during transfer operations using current

equipment, the IFR specified special

conditions for continued operations in

new § 171.5. These conditions offered

an alternate means of compliance with

existing emergency discharge controls

required by § 178.337–11. Those

conditions included:

Paragraph (a)(1). Use provisions

under which MC 330, MC 331, and nonspecification cargo tank motor vehicles

authorized under § 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 § 171.5.

Paragraph (a)(2). Conditions for

continued qualification of existing inservice cargo tank motor vehicles.

Paragraph (a)(3). Requirements for

new vehicles, including a special entry

on the Certificate of Compliance

required by § 178.337–18.

Paragraph (b). A requirement for a

specific marking to be displayed on

each cargo tank motor vehicle operating

under § 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

§ 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 § 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 industrysponsored 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

§ 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
44042 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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

§ 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 § 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 § 553(b)(B) and § 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, § 553(b)(B) and § 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 selfclosing stop valve or other device that

will immediately stop the discharge of

product from the cargo tank. (See

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

§ 177.834(i)(3). The commenters state

that, in their opinion, because

§ 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 § 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
44044 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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 § 171.5(a)(1)(iii) by

requesting the following amendment:

In addition to the attendance requirements

in § 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

§ 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 selfclosing 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 selfclosing 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

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

§ 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 § 178.337–11.

D. Need for Passive System

Requirements

Several commenters question whether

the emergency discharge requirement in

§ 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 § 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, operatordependent countermeasures are the

primary safety measure. The operatorattendance requirements for unloading

operations in § 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 § 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 operatordependent 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 § 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 selfclosing 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

§ 173.315(k) may be operated and

unloaded. Also, this paragraph makes

clear that § 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,
44046 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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 § 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

§ 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 § 178.337–11(a)(1)(i)

may be operated under the provisions of

§ 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 § 171.5

train their employees to perform the

new function-specific requirements in

§ 171.5 and maintain records of this

training as required under § 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 § 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 § 178.337–

11(a)(1)(i) to continue in operation if the

Certificate of Compliance and

inspection report required under

§ 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 § 171.5.

Paragraph 171.5(c) states that

requirements specified in § 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 § 178.337–11, tracing back to 1941, or

with provisions in § 171.5. However,

because segments of industry are in

non-compliance with requirements in

§ 178.337.11(a)(1)(v) and the attendance

requirements in § 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 onetime 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
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 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 samplesurvey-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

§ 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
44048 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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 largescale 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 commerciallyavailable 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:

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

§ 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

§ 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 § 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 functionspecific 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

§ 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 § 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

BILLING CODE 4910–60–C
44050 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

1NPGA 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.’’

2A 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.

(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×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 § 106.35; and

Petition for Rulemaking Pursuant to 49 CFR

§ 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 § 106.35(a), we specifically petition

RSPA for reconsideration of the additional

attendance requirement in 49 CFR

§ 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 § 106.35(a)

for such petitions in that compliance with

the additional attendance requirement in

§ 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.

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

§ 106.35. Nonetheless, pursuant to the

provisions in 49 CFR § 106.31, we

additionally petition RSPA for rulemaking to

amend 49 CFR § 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.

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-
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 44051

3RSPA asserts that this rulemaking is exempt

from the Regulatory Flexibility Act, as amended, 5

U.S.C. §§ 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.

4Based 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.

5NPGA 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

§ 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.

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.

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.

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
44052 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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.

7See 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).

9The 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).

11Motor Vehicle Mfgr. Assoc., supra., at 43.

12See 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).

13Based on 1995 retail sales volume of 9,429,570

gallons multiplied by $.07 per gallon.

14The 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.

15The 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.

system. More specifically, the additional

attendance requirement in § 171.5(a)(1)(iii)

could not have prevented or helped to

prevent these tragic accidents.6

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. § 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

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.

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

§ 171.5(a)(1)(iii) is $237,017,143 annually.14

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.

Most significantly, the Government’s own

analysis of the aggregate total costs to society

from releases of propane as a result of a
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 44053

16As stated above, this calculation would

decrease due to the Government’s overestimate of

the average number of gallons released in the 16

reported incidents.

17At the March 20, 1997 Public Meeting, the issue

was raised as to the requirements now contained in

49 CFR § 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.

18Motor Vehicle Manufacturers Association, 463

U.S. at 43.

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).

Finally, NPGA submits that the additional

attendance requirement in § 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

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.

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 § 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

§ 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
44054 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

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. § 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]

Year

Propane fuel

sales 1,000

gallons

Number of bobtail

deliveries

represented

Number of transport deliveries

represented

Scheduled

commercial

airline 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

Total Deliveries—306,633,479

ATTACHMENT B.—SALES OF PROPANE BY PRINCIPAL FUEL USES, 1986–1995

[1,000 Gallons]

Year

Residential

and commercialIndustrial 1 Engine fuel Farm Other 2 Total

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.
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 44055

1 It should be noted that Petitioners are not aware

of any documented basis for this suggestion.

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.

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.

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.

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.

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.

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 § 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.
44056 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

4Preliminary Regulatory Evaluation, Docket HM–

225, Cargo Tank Motor Vehicles in Liquified

Compressed Gas Service (February 1997) at p. 6.

5A copy of the announcement issued by A–B

Products, Inc. on March 3, 1997 is provided as an

attachment to this Petition.

6Preliminary Regulatory Evaluation, Docket HM–

225, Cargo Tank Motor Vehicles in Liquified

Compressed Gas Service (February 1997) at p. 6.

7See Preliminary Regulatory Evaluation at 1.

Petitioners note that no documentation concerning

these alleged incidents is included in the

administrative record.

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.

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.

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.

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.

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
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations 44057

8Assuming 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.

9Even 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.

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.

11Together, Petitioners have a total of

approximately 15,100 employees.

12Conservatively assuming a total cost of

$25,000.00 per employee for recruiting costs, salary,

training, and benefits.

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.

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.

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 nearterm, interim compliance option.

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 electromechanical 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
44058 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations

13Overfilling 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.

14This modification would by itself be sufficient

to address Petitioners’ concerns with respect to

propane transports.

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.

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 realworld 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.

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.

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